ACOEL’s Alex Dunn to Serve as Regional Administrator for EPA Region 1

Posted on December 13, 2017 by Andrea Field

Last month, EPA Administrator Scott Pruitt announced the well-deserved appointment of the ACOEL’s own Alexandra Dapolito Dunn as Regional Administrator for EPA Region 1.  The press release accompanying the announcement described Alex’s exceptional qualifications and extensive environmental experience.  It also included endorsements and accolades for Alex from a remarkably diverse group of people, including senior regulators in the Region 1 states, representatives from environmental advocacy groups, and academics.

Those of us in the College both congratulate Alex and thank her for helping to raise the profile of the American College of Environmental Lawyers by somehow ensuring (we don’t know how and we don’t care) that Administrator Pruitt’s press release included numerous references to the College.  The announcement not only noted Alex’s membership in the ACOEL (and her recent election to the College’s Board of Regents), but also it included the endorsement of Alex by John Cruden and noted John’s current position as ACOEL president.

So, best of luck, Alex, and thanks for your efforts to help us achieve John Cruden’s goal of spreading the word on the ACOEL!  

Oh, Well, Some Folks Don’t Like Oysters, Anyway….

Posted on December 12, 2017 by James I. Palmer, Jr.

As a kid growing up in the hills of North Mississippi, I was introduced to oysters by my maternal Grandmother in Biloxi, down on our Coast.  I wasn’t particularly impressed with the slimy mollusks then, but my tastes changed over many years and I now enjoy them, especially in po’boys and on the half shell.

For the longest, I have considered oysters from Apalachicola Bay, Florida, to be the best along the Gulf Coast.  Large, plump, salty, everything an oyster fan likes.  But, today the oyster industry in the Bay has declined dramatically, and many Floridians believe that the ultimate fate of this historic mainstay of the economy of the area will soon be determined by the Justices of the United States Supreme Court.

The “Tri-State Water Wars” among Alabama, Georgia, and Florida are now several decades long, and never more intense.  Two interstate compacts, covering six river basins in the three states, failed to yield an “equitable apportionment” of the flows from these basins, and expired by their terms.  Follow-on negotiations fared no better.  So, in 2013 Florida sued Georgia in the Original Jurisdiction of the Supreme Court, but didn’t join Alabama.  The case was tried before the Special Master from October 31, 2016 through December 1, 2016.

At the core of Florida’s claims is the ever-growing demand for water in Georgia, principally (but not only) in metropolitan Atlanta.  Even the definition of “metropolitan Atlanta” differs among websites, so the data showing the population trends over the last 50 years also differs somewhat, but the numbers I will use for general reference show that the population of metropolitan Atlanta was 3,317,000 in 1990, 4,548,000 in 2000, 5,034,000 in 2004, and the 2010 U.S. Census recorded 5,800,000.  I’ve seen one projection of 8,000,000 by 2020.  Using these statistics purely for the sake of argument, the population of metropolitan Atlanta in 2020 – just over two years away – could have grown by over 240% in 30 years.  

Too, production agriculture in southwestern Georgia, heavily dependent upon surface water and groundwater supplies for irrigation, has also burgeoned during this same time period.  Groundwater levels in the Flint River basin have declined significantly because of what one of Georgia’s own witnesses at trial attributed to essentially lax regulatory management at the State level.  No surprise, these declines in groundwater availability have ratcheted up pressures on surface water resources in the Flint River watershed.

Thus, given these twin realities of seemingly insatiable urban and agricultural demands for water in Georgia, it’s no wonder that folks down in the Apalachicola Bay area staunchly believe that this is the principal cause of declining freshwater flows into the Bay, and, inevitably, will lead to the irrecoverable loss of the Bay ecosystem, itself.

The Special Master rendered his Report on February 14, 2017, and it was filed on March 20, 2017.  The Special Master found, as a matter of fact and law, that Florida had failed to prove its case by clear and convincing evidence, and recommended that the Supreme Court deny Florida’s claims.

Florida filed its Exceptions to the Report of the Special Master on May 31, 2017.  Georgia filed its Reply opposing Florida’s objections on July 31, 2017, and Florida filed its Sur-reply on August 30, 2017.  Amicus briefs supporting Georgia’s position have been filed by the United States (on behalf of the Corps of Engineers), the State of Colorado, and the Atlanta Regional Commission, et al.  The case has been set for oral argument before the Supreme Court on Monday, January 8, 2018.

Of the several issues before the Court, the two major ones are the “clear and convincing evidence”  burden of proof standard the Special Master imposed upon Florida and the general issue of “redressability,” which turns on the obligation of Florida to prove both substantial (some would say “irreparable”) injury and that the relief sought (a consumption cap on Georgia water use, primarily in the Flint River Basin) would, in fact, provide additional flows into Apalachicola Bay sufficient to save the ecosystem and the oyster industry.  Understandably, Georgia strongly rejects Florida’s contentions.

The cases relied upon by Georgia and the amici are, in the main, decisions in litigation between and among western states whose organic water resources laws are grounded in the doctrine of prior appropriation.  Here, the dispute is between two states whose organic water resources laws arise under the common law doctrine of riparianism (or, in modern times, regulated riparianism).  Interestingly, because the Supreme Court departed from pure riparian principles in early cases involving interstate fights over the water needs of huge urban areas like New York City, Florida contends that it is appropriate in this case for the Court to apply traditional equitable principles in addition to equitable apportionment principles that have evolved over many years of case law.  While not dismissing the argument out of hand, I think it could be a real challenge for Florida to make it stick.

Ultimately, the Court will either accept the Report and recommendations of the Special Master and dismiss Florida’s case outright, or decline to accept the Report and remand the case to the Special Master for further proceedings.  Given the deference the Supreme Court generally accords Special Masters in Original Jurisdiction cases, I think Florida, figuratively, now has to push a very heavy anchor chain up a very steep hill to stay in the fight it started.  If the State fails, locals say that the loss will likely result in a knockout blow to the oyster industry in Apalachicola Bay, which is already on the ropes.  Maybe, yes.  Maybe, no.  Maybe, not yet.  Time will tell.  Oh, well, some folks don’t like oysters, anyway….

It Ain’t Over ‘til It’s Over -- The Congressional Review Act & the Search for Zombie Regulations

Posted on December 7, 2017 by Allan Gates

Enacted in 1996, the Congressional Review Act (CRA) affords Congress the opportunity to review and disapprove final rules of federal agencies.  In the first 20 years of its existence, only one regulation was disapproved using the CRA.  In the first 100 days of the Trump administration, however, Congress invoked the CRA to disapprove thirteen separate regulations.  The White House advertised the CRA disapproval resolutions as the top legislative accomplishment of the administration’s first 100 days, proudly claiming that President Trump had signed more CRA resolutions than any other President in history.

By mid-summer most observers assumed the push to roll back Obama-era regulations using the CRA was over because the statute provides a narrow window of time for introducing resolutions of disapproval (generally 60 legislative days from the date the regulation is received by Congress), and it similarly limits the time within which expedited legislative procedures – including passage by simple majority vote in the Senate – can be used.

But wait, there’s more  – 

The window of time for introducing a disapproval resolution under the CRA begins to run on the day a regulation is submitted to Congress.  And it turns out agencies have not always been careful about sending their rules to Congress.   According to a 2014 report, hundreds of final regulations published in the Federal Register each year have never been reported to Congress.  Moreover, since the rules subject to review under the CRA are not limited to those published in the Federal Register, the report suggests there may be thousands of unreported interpretive rules, guidance documents, “Dear Colleague letters,” and the like.

Conservative activists aware of the inconsistent agency filing practices have begun to argue that all older regulations that were not reported to Congress are still subject to CRA review.  One conservative group has established a separate website, RedTapeRollback.com, proclaiming that:

“Powerful new ideas to use the CRA for older rules not reported to Congress are causing great excitement. This is a regulatory game changer!”

The website includes a database of rules it claims were not reported; and the website urges its visitors to, “Help us find and report more rules that were never submitted to Congress.”

The activists promoting use of the CRA to attack older, unreported regulations offer three rollback strategies.  First, private parties who are subject to the requirements of an older, unreported regulation could argue the regulation has never taken effect. There is certainly language in the CRA to support such an argument:

“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress [a report containing a copy of the rule.]”

Another provision of the CRA, however, has language that may preclude a private party’s ability to obtain judicial review of claims based on the CRA:

“No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The second strategy calls for the Trump administration to identify undesirable rules that were never reported to Congress, state that the rules have never taken effect because of the agency’s failure to report them, and abandon or vacate the rules.  Under this scenario, the Trump administration would roll back undesirable rules immediately without the necessity of going through notice and comment rulemaking procedures otherwise required to repeal the rules.

The third strategy suggests the Trump administration could identify undesirable rules that were never reported, report them to Congress, and encourage Congress to adopt resolutions of disapproval.  If this occurs, Section 801(b)(2) of the CRA precludes reissuance of a disapproved rule in the same or similar form unless Congress affirmatively adopts legislation authorizing the promulgation.

It may well be that the activists’ frothy enthusiasm for expanded use of the CRA will come to very little.  It is possible, perhaps even likely, that most of the unreported rules were insignificant, unobjectionable, or even exempt from reporting and review under the CRA.  Moreover, as a practical matter it is unlikely that Congress would be willing to devote significant amounts of floor time to debate the disapproval of a large number of older, unreported regulations.  Nevertheless, a cursory examination of RedTapeRollback’s database of supposedly unreported rules cannot help but give one pause.   Think the 2010 Chesapeake Bay TMDL and EPA’s 2008 Rapanos Guidance.

Interest in use of the CRA did not end with the flurry of disapproval resolutions in the first one hundred days of the Trump administration.  At a September House Subcommittee on Regulatory Reform oversight hearing focused on agency compliance with the CRA, witnesses urged Congress to attack older regulations that were never reported to Congress.  In late October, Congress passed and the President signed a disapproval resolution invalidating an arbitration regulation adopted by the Consumer Financial Protection Bureau, an independent agency whose regulations are not ordinarily subject to Executive review and approval.

The recent surge in use of the CRA has not gone without opposition.  The Center for Biological Diversity (CBD) has filed suit to vacate a CRA resolution that nullified an Interior Department regulation limiting the methods used to hunt wolves and bears in Alaska wildlife refuges.  Among other things, CBD argues that the CRA limitation on issuance of future regulations without express approval of Congress infringes on the constitutionally protected separation of powers.  The court’s decision in the CBD case is likely to provide guidance on the reach of the language quoted above that limits judicial review of claims arising under the CRA.

Against this background it is safe to say that we have not seen the last of the CRA in the Trump administration.  As Yogi Berra once said, “It ain’t over ‘til it’s over.”

PASSING LESS GAS

Posted on December 5, 2017 by Keith Hopson

While some still debate climate change, on 11/22/17, eight of the oil and gas industry’s biggest players signed on to a set of Guiding Principles for reducing methane emissions across the natural gas value chain.  BP, Eni, Exxon Mobil, Repsol, Shell, Statoil, Total and Wintershall, in collaboration with international institutions, NGOs and academics, drafted the Guiding Principles.

The five guiding principles are: continually reduce methane emissions; advance strong performance across value chains; improve accuracy of methane emissions data; advance sound policy and regulations on methane emissions; and increase transparency.  Click here for the entire Guiding Principles document.

It will be interesting to see if these “voluntary principles” eventually become enforceable regulations.  Likewise, it will be interesting to see if these guidelines become “industry standards” and, accordingly, whether by acquiescence, private litigation, or lender requirements, become de facto regulations.

Time will tell.

It is significant to see so many major oil and gas industry actors responsibly, firmly and publicly commit to both reduce methane emissions and advance monitoring.  Perhaps now others in the industry will be more inclined to join the responsible eight and commit to pass less gas.

The Truth about Sue and Settle that Scott Pruitt Ignores

Posted on December 4, 2017 by Jonathan Z. Cannon

Seth Jaffe’s post about EPA Administrator Scott Pruitt’s sue and settle directive is right on. As he notes, the Administrator punts on the question at the core of his holy war against sue and settle: that is, what is the evidence that sue and settle has been abused in the way he presumes?  In particular, was sue and settle systematically used during the Obama administration as a vehicle of collusion between environmental groups and sympathetic agency officials, catering to the greens through rulemaking in secret? That was the characterization advanced by the Chamber of Commerce and other pro-business and anti-regulatory groups that made sue and settle a battle cry in their war against Obama’s environmental policies. Without citing any evidence, Pruitt has proceeded as if that characterization is correct.

A careful, fact-based, analytically disciplined examination of the practice of sue and settle during the Obama administration shows that this characterization is not correct.  That examination appeared in a law review note by a former law student of mine, Ben Tyson, who went on to clerk for Chief Justice Roberts on the Supreme Court.  I recommend that anyone who is interested in this issue -- and who delights in careful research and analysis – read the entire article. But here’s a brief summary for those who don’t have the time.

Tyson’s analysis is based on eighty-eight sue and settle cases arising under the Clean Air Act, Clean Water Act, and the Endangered species act during the Obama administration.  This data set includes twenty-eight cases that were missed by the Chamber of Commerce in its 2013 report, Sue and Settle: Regulating Behind Closed Doors.  In his analysis Tyson is careful to distinguish between decision-forcing consent decrees, which simply require the agency to do what it is statutorily required to do and do not have a potentially adverse effect on public participation in rulemaking, and substantive consent degrees, in which the agency agrees to propose a particular regulatory change, with dismissal of the litigation dependent upon adoption of that change after public notice and comment. Of the total eighty-eight sue and settle suits, seventy-nine were brought by environmental groups.  But all but four of these suits by environmentalists sought decision-forcing consent decrees, not substantive outcomes. And in three of those four cases, there was at least one industry intervenor that had a right to be heard on the proposed decree.  Tyson concludes: “Sue-and-settle, when used by environmental group plaintiffs, is not principally about secret, backdoor rulemaking.” Instead, overwhelmingly, environmental groups used litigation to enforce existing statutory requirements. 

Ironically, although industry brought far fewer sue and settle suits overall (only nine compared to the environmental groups’ 79), five of those suits resulted in consent decrees with substantive terms. And there was no environmental intervenor in any of those cases to contest entry of the consent decree. Based on the data, industry used sue and settle to achieve substantive outcomes more often than environmental groups. And the total number of substantive sue and settle suits by industry and environmental groups was relatively small (9, or 10% of the 88 cases). Improving public participation is always worth attention, but one wonders what all the fuss was about.

Water Quality: Wading Into Trading

Posted on November 28, 2017 by Ridgway Hall

For over 20 years EPA has been promoting water quality trading – with particular emphasis on nutrients and sediment – as a way to improve water quality at reduced costs. Trading is based on the simple proposition that if Party A can reduce a pollutant at a lower per-unit cost than Party B, who needs to reduce its discharges of that pollutant, it is more economically efficient for Party A to reduce its discharges below what is required by law, and sell the additional reduction, or “credit”, to Party B. If the price is less than what Party B would otherwise pay and more than it costs Party A to make the reduction, B will save money and A will make money. 

The focus is on nitrogen, phosphorus and sediment because these pollutants have for many years been leading causes of water quality impairment and, in the case of nutrients, adverse effects on human health when the resulting algae blooms release toxins and harmful bacteria.  In 2016 EPA reported that nutrient-caused algae blooms were on the rise, causing fish kills, contamination of fish and shellfish, and beach closures, resulting in significant damage to local economies and impairments to human health. The biggest source of these pollutants is farming operations. Trading seems especially well-suited to help reduce polluted runoff from farms because their per unit cost of removing nutrients is far lower than for wastewater treatment plants. Finally, because farm runoff is a nonpoint discharge, it is not regulated under the Clean Water Act. Regulation is left to states. While many states require farms to have nutrient management plans, because the states have limited resources to inspect and enforce, finding incentives to stimulate a market-driven solution has obvious appeal.

So why are there so few trading programs in place? The GAO attempted to find the answers in its report Water Pollution: Some States Have Trading Programs to Help Address Nutrient Pollution, but Use Has Been Limited (October 2017). The report addresses (1) the extent to which nutrient trading programs are being used, (2) how EPA and the states oversee these programs, and (3) what factors affect participation in trading.  As of 2014, eleven states had some form of trading programs: California, Connecticut, Florida, Georgia, Idaho, Minnesota, North Carolina, Ohio, Pennsylvania, South Carolina and Virginia. Most of the trading was being done in Connecticut, Pennsylvania and Virginia, so GAO focused primarily on these programs.

All three of these states established their trading programs through legislation and implementing regulations. All three allow point-source to point-source trading, but as of 2014 only Pennsylvania allowed non-point sources to generate credits. Virginia appears to be moving in that direction through pending regulatory amendments.  Connecticut uses a general permit that allows 79 point sources in the Long Island Sound watershed to trade nitrogen credits through a Nitrogen Credit Exchange Program. Each year plants that are not meeting their discharge limits can buy credits from plants who are below their required limits.

Virginia allows trading of nitrogen and phosphorus credits between point sources.  Most but not all sales are through a Nutrient Credit Exchange Association, which is privately run in consultation with the state, and provides tracking of credit generation and sales.  Pennsylvania allows a point source to buy credits generated by nonpoint and point source dischargers. It has a credit exchange, PENNVEST, but most trades are outside it.  The state keeps a registry of credits generated, sold and used. During 2014, there were 39 trades in Connecticut, 151 in Pennsylvania, and 31 in Virginia.

Trading programs are managed by the states, with oversight by EPA to be sure that both the elements of the trading program and individual permits that incorporate trades comply with the Clean Water Act. Those who buy credits said that the benefits of doing so include reduced cost of compliance, risk management (credits can be used to address plant failures which cause noncompliance), and flexibility in timing technology upgrades. 

GAO cites two primary disincentives to trading. First, if water quality criteria are written in narrative form, permits are also often written in narrative form, so it is difficult to determine whether or when use of a credit might be helpful. While EPA has been pressing states to adopt numerical criteria for nutrients, GAO reported that as of 2017 only 6 states had them.  I believe that this problem can be mitigated by including numerical water-quality based effluent limits (WQBELS) in NPDES permits even when the criteria element of a water quality standard is narrative.  I don’t know how widely this is done, but typically a total maximum daily load (TMDL), which is required for water bodies not meeting water quality standards, is expressed in numerical terms, and that provides the basis for WQBELs. GAO observed that the Ohio River Basin Interstate Water Quality Trading Project allows trading among sources in Ohio, Kentucky and Indiana, but almost no trading has occurred because there are no numerical limits in the water quality standards or a TMDL.

The second reason given by stakeholders to GAO for limited trading is the difficulty in determining the water quality benefits of a best management practice (BMP), which is what is installed on farmland to reduce runoff. Models do exist for converting the benefits of BMPs, such as vegetated buffers, no-till farming and cover crops, to numerical pollution reduction on an annual basis, but these are only estimates, and lack the precision that a point source discharger looks for in deciding whether to buy a credit from a farmer. EPA has recommended the use of an “uncertainty factor”, such as 2:1, by which a buyer of 100 nitrogen credits would have to buy 200 credits. This could be modified upwards or downwards based on site-specific conditions. It is still an estimate, and any trading program will need to apply a dose of adaptive management if it wants nonpoint source trading to get up and running.  The potential cost savings are sufficiently great that such an uncertainty ratio would not by itself, in most cases, discourage trading.

Several other factors, not discussed by GAO, also tend to discourage nonpoint source trading. There is the uncertainty of the buyer, who will rely on the credit to meet its NPDES permit terms: what if the BMP on which the credit is based fails? This is a particular concern for public utilities, whose managers and ratepayers may not want the utility relying for compliance on a set of BMPs over which the utility has no control. On the farmer side, what if the farmer invests substantial sums in BMPs to generate credits, but there turns out to be little or no market for them? Several states and some financing institutions are exploring ways to create a market to jump start the process, and we will likely see more on that. Finally, there is an inherent reluctance to be among the first in what is still largely an experimental program – especially if it is being run by a government agency.

It is no coincidence that two of the three most active programs, Pennsylvania and Virginia, are in the Chesapeake Bay watershed, where a numerical multi-state TMDL has been in place since 2010. (That TMDL was discussed in my blog article EPA Issues Biggest TMDL Ever for the Chesapeake Bay Watershed, posted March 4, 2011.) At this writing Maryland, also in the Chesapeake watershed, is developing a trading program which will include nonpoint source trading and will be run jointly by the Maryland Departments of Environment and Agriculture.  The only way the goals of the Chesapeake TMDL will be achieved is through major reductions of the nitrogen, phosphorus and sediment released by farms. In a future post, I will explore those three programs in more detail.

Pruitt Banishes “Sue and Settle” – A Solution In Search of a Problem?

Posted on November 27, 2017 by Seth Jaffe

EPA Administrator Scott Pruitt earlier this month issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents.

As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support.  These include:  (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.

So far, so good.  However, at a certain point, the Administrator seems to have gone off the rails.  First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.”  Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?

What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.”  Instead, the Directive merely states that:

"It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups."

The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”

The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson.  I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water.  Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.

What’s Happening with the Other Clean Air Act (CAA) §111(d) Rule?

Posted on November 24, 2017 by Steve Kohl

Long ago and in what seems like a faraway place, the D.C. Circuit vacated the NESHAP for boilers and the NSPS for Commercial and Industrial Solid Waste Incineration (CISWO) units. (See “EPA in the D.C. Circuit – Where Has All the Deference Gone”, ACOEL Blog, September 23, 2008). The demarcation between boilers and other process heaters and CISWI units is whether or not they burn waste. The D.C. Circuit held that EPA had improperly drawn that line. Since the source categories are mutually exclusive under the Clean Air Act, the improper line drawing resulted in the improper definition of each source category, resulting in the demise of the rules. Fast forwarding (sort of) to 2013, EPA finally promulgates a new and improved boiler NESHAP and new NSPS rules for new and existing CISWI units. These rulemakings were only made possible by the Non-Hazardous Secondary Materials (NHSM) rule which defines what is or is not a waste when burned. It takes the entirety of 40 C.F.R. Part 241 to provide this definition and the processes for determining if something is a waste or a fuel. 

Now comes the fun part. An existing boiler burning clean wood had to be in compliance with the NESHAP by early 2016, but the same existing boiler burning “dirty” wood categorized as a waste under the NHSM rule didn’t have to comply with the NESHAP since it is not a boiler but an incinerator. Well, it must have to comply with CISWI existing incinerator standards, right?  Well no. In fact, there really aren’t any applicable NESHAP requirements for existing boilers burning waste. 

The CISWI standards for existing units, 40 C.F.R Part 60, subpart DDDD, are §111(d) guidelines, which additionally must address the requirements enacted for incinerators in §129 of the CAA.  Those who have followed the Clean Power Plan (CPP) about which much has been written, including several ACOEL blogs (Is You Is Or Is You Ain’t Transformative?Unprecedented Program Leads To Unprecedented ResponsePulling the Plug on Greenhouse Gas Emissions), recognize that most states were in the process of developing state implementation plans (SIPs) to implement the CPP when the Supreme Court stayed the rule.  That’s because the CPP was also a §111(d) “guideline” for existing electric steam generation units. Actual application of the CPP was dependent upon SIPs approved by EPA which implement the guidelines or, if a state defaults, a federal implementation plan (FIP) implementing the CPP guidelines. Similarly, the CISWI standards for existing units must be implemented through approved SIPs or a FIP.  The SIPs or FIP required to implement the CISWI standards for existing units are required to be in place within five years, or February 7, 2018 and compliance is required by that same date.  However, no such SIP has been approved and no FIP finally promulgated.  Polite inquiries to EPA have provided no insight to the ultimate timing.

The delay in taking final agency action to implement CISWI standards for existing sources creates some interesting circumstances.  A state may recognize that through a renewal or a reopener of a facility’s Title V permit it should incorporate CISWI requirements, but it really can’t since there isn’t a federally enforceable requirement for CISWI. Subpart DDDD guidelines contain some provisions for determining whether certain sources qualify for an exemption from CISWI under §129. If they are exempt from CISWI, then they should be complying with the currently applicable boiler NESHAP, but there really isn’t any applicable rule for determining the validity of an asserted exemption. Subpart DDDD guidelines also provide that if a waste-burning source does not want to comply with CISWI and instead intends to comply with an applicable NESHAP, it must cease burning waste six months in advance of the date its chooses to switch from being a CISWI source to a NESHAP source. So if that dirty wood burning boiler doesn’t intend to comply with CISWI as of the ostensible compliance date of February 7, 2018, should it have switched to clean wood in July of 2017 even though there was no applicable rule requiring the six month period?

Final promulgation of the FIP or approval of the submitted SIPs would not appear to be a heavy lift since the proposed FIP and the submitted SIPs essentially mirror subpart DDDD.  So the delay to what is now four years and nine months out of the five years allowable under the CAA is somewhat incomprehensible. It begs the question, “What’s happening with this §111(d) rule?” 

MEAT CLEAVER OR SCALPEL?

Posted on November 22, 2017 by Annette Kovar

It’s been a long time coming. Regulatory reform is on the agenda again and maybe it’s real this time. Spawned by a quantitative “snapshot” of the state’s regulatory text developed by researchers at the Mercatus Center at George Mason University, Nebraska is embarking on a comprehensive review of its state regulations, including environmental regulations.  EPA has also been directed to take a critical look at its regulations.

Whether or not one agrees with all the methods used or conclusions drawn by regulatory reformers, it’s hard to disagree with the basic premise that the sheer amount of current regulation is daunting. Maybe the time has come to examine whether we can consolidate or even eliminate some requirements that have been on the books for years even though no one really knows why. Maybe the underlying problems that were meant to be addressed by many of our current regulations don’t occur anymore.  Maybe some regulations were developed based on worst case scenarios, oftentimes because there was a reluctance to leave anything to the discretion of the implementing environmental agency.

Process improvement and streamlining are hot topics these days in government circles, and I’m all for that! I do not favor being less protective of the environment, but I am for eliminating the complexity and multiplicity of paperwork, for making regulations easier to read and understand, for providing helpful guidance rather than just paraphrasing statutes, and for rethinking traditional paradigms and coming up with something more user-friendly. In short, it make sense to me to examine whether we need all the regulations now on the books and to think about streamlining and clarifying the regulations that we do need.

EPA Tries Again to Keep Toxic Pollution Information from Communities

Posted on November 21, 2017 by Peter Lehner

Your Thanksgiving turkey, like most meat in America, was probably produced at an industrial animal facility in rural America. These facilities hold thousands or tens of thousands of animals in a confined space and can produce as much waste as a mid-sized city. They are prodigious factories that generate dangerous air and water pollution, yet unlike other factories, they’ve been given a free pass from reporting their toxic emissions.

Community and environmental groups have been pushing the Environmental Protection Agency to address pollution from animal feedlots for decades, and recent court decisions seemed to indicate that the veil of secrecy surrounding these operations might finally be tugged back. However, instead of following the court’s latest ruling to ensure that industrial animal factories report toxic emissions, the EPA is proposing a sweeping exemption that would shield thousands of livestock facilities from reporting. 

This move represents the third attempt by the EPA to block these reporting requirements. Under President George W. Bush, the EPA suspended them in 2005, claiming the issue was being studied, then pushed through an illegal exemption in 2008, which was rejected in court.  And now, Scott Pruitt’s EPA is making a fresh attempt to make the exemption even broader. It’s a move that favors industry over the health of affected communities. The EPA itself has rejected this exemption, a proposal favored by industry, three times before.

While polluters are benefiting from the EPA’s dereliction of duty, people who live near these facilities continue to suffer. “During the summer we can’t keep our doors or windows open because of the stench,” writes Iowa farmer Rosemary Partridge, who lives near 30,000 hogs concentrated in factories near her farm. Partridge has worked with Earthjustice since 2015 to fight for more oversight of industrial animal agriculture. “Sometimes it gets so bad [my husband and I] get headaches and feel nauseous.”

Toxic gases from animal waste, which is often stored in open pits and sprayed over fields, include substances like hydrogen sulfide and ammonia that can cause nausea, headaches and chronic lung disease. Children in nearby schools have a heightened risk of asthma. Dairy farm workers have fallen into manure pits and drowned after being overcome by toxic fumes.

Feedlots tend to be clustered in low-income communities, and in some parts of the country, especially the Southeast, in communities of color. Earthjustice and others brought a civil rights complaint in 2014, which EPA found to have merit, over the concentration of hog farms in North Carolina.

A recent stinging report from the EPA’s independent Office of the Inspector General recommended that the EPA stop shielding polluters. Yet the agency still took a third, wild swing at stopping pollution reporting requirements for industrial animal agriculture. It’s time for the EPA to put down the bat and take the field for healthy communities.

Coming Soon to a Northeast or Mid-Atlantic State Near You: Regulations on Carbon Emissions From Transportation

Posted on November 16, 2017 by Seth Jaffe

Earlier this week, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation.  The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”

Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this:  RGGI for transportation.

To give one an idea of the momentum that is finally building in support of regulation of transportation sector GHG emissions, one need look no further than the recent letter sent jointly by the New England Power Generators Association (our client), the NRDC, the Sierra Club, the Union of Concerned Scientists (also our client!), and the Acadia Center to four New England governors, requesting that they

"develop and participate in a regional, market-based policy to address greenhouse gas emissions from the transportation sector."

If the letter seems at first blush to involve strange bedfellows, think again.  From NEPGA’s perspective, its members are reasonably sick and tired of being the only target of GHG emissions regulations – particularly given that electric generation now represents less than ½ the GHG emissions from transportation.  From the perspective of the environmental groups, they know that it will be literally impossible to meet targets of 80% reductions in GHG emissions by 2050 without very substantial reductions in emissions from transportation.

For too long, states focused on electric generation emissions to the exclusion of transportation for one reason only.  Transportation will be difficult.  Difficult is no longer an excuse.

It’s about time.

AS IT TURNS OUT, NEW SOURCES OF ENERGY ARE BLOWING IN THE WIND

Posted on November 13, 2017 by Gregory H. Smith

There is growing recognition that New England’s energy costs are much higher than neighboring parts of the country.  To a large extent, these high costs are due to the combination of transmission congestion, an ever-increasing reliance on natural gas and a shortage of natural gas supply in the New England market.  As a result, new participants are seeking entry into the market, including several seeking to expand the diversity of generation sources.

Antrim Wind Energy, LLC is an example of new participants seeking entry into the market.  In 2015, Antrim filed an Application for Certificate of Site and Facility with the New Hampshire Site Evaluation Committee (“SEC”) to develop a wind farm.  The Application was Antrim’s second attempt to gain SEC approval.  As noted in this space, an earlier Antrim project was denied in 2013 based primarily on its “aesthetic” effect on the region.    Several key factors led to a different outcome in the second proceeding.

Since 2013, the New Hampshire SEC has substantially revised its siting rules. Particularly pertinent to the Antrim Wind Project are new, more specific rules for aesthetic assessments.  Although review of aesthetic effects are, by their nature, somewhat subjective, the rules provide objective standards for visual impact assessments to provide greater predictability of outcomes.  The SEC rules require the Committee to consider seven different, specific criteria in making a determination as to whether a proposed project will have an unreasonable adverse effect on aesthetics. 

In reviewing the second Antrim proposal, the SEC placed particular emphasis on criterion six (6), whether the project would be a dominant or prominent feature in the landscape. 

In its second proposal, Antrim made several significant modifications to its earlier application case, that, coupled with the changes in the governing law, produced the favorable outcome.  Most important, the number of wind turbines, and their size and scale were reduced.  This modification doubtless affected the Committee’s analysis of whether the project “would be a dominant and prominent feature” in the landscape.

The SEC also adopted a public interest test as part of the new rules, which made a significant difference in review of the 2015 application.  No clear definition is provided in the rules as to how an applicant can demonstrate that a project is in the public interest.  A focus on project benefits seems to be a key factor.  In the Antrim case, beyond the obvious benefits of diversifying energy generation to include clean, renewable wind energy with the corresponding beneficial effect on climate change, there were recognized benefits to the community similar to those in the land use approval process.  These included stabilizing tax payments through a municipal agreement, investments in community infrastructure, and permanent preservation of 908 acres of land as a form of mitigation. 

The Antrim Wind project now stands alone in New Hampshire as the only sizable energy project to first have been rejected by the SEC, and subsequently reheard and approved.  The protracted Antrim case demonstrates that the somewhat complicated siting rules are capable of reasoned and predictable application.  It is also clear that this case provides useful instruction for what will likely be required for approval in the subsequent applications.

Paper or Cyber? Protecting Confidential Information

Posted on November 9, 2017 by Ronald R. Janke

Equifax, Yahoo, South Korea – reports of the theft of computer-based information by known, suspected or unknown hackers have become commonplace.  A recent report of the hacking into a Securities and Exchange Commission database containing confidential information is of special interest to environmental lawyers, because it poses the question of how can regulated entities electronically submit confidential information to government agencies and be confident that such information will not be stolen through a breach of cyber security. Environmental lawyers are almost universally ill-equipped to answer that question. Even with the help of cyber security experts, the growing number of reported hacks of corporate and government networks provides little comfort for submitting confidential data electronically.

Currently, the best practice may be to submit any confidential information in hard copy.  In my experience, agencies protect such information by techniques such as storing documents with confidential information in separate, locked files, using a log to record when a document is removed and returned and who has taken it.  While a document with confidential information may be stolen from a file or erroneously filed with publicly-available documents, someone has to be physically present to obtain that document.  In contrast, documents stored electronically can be subjected to a cyber-attack by anyone located anywhere in the world.

Agencies may require or prefer to receive all information electronically.  Applicants for permits and other approvals may have little choice in such circumstances, but they can initiate a conversation with the agency employee responsible for receiving any confidential information.  Expressions of concern over cyber security may instill some sense of personal responsibility in the recipient for protecting the confidentiality of sensitive information by limiting how it is accessed and used.  While agency rules may apply equally to all confidential information, the duty to protect confidential information is more personal when it is in a document located in a file drawer maintained in one’s office than when information is stored electronically on a computer database, perhaps with thousands of other documents.   In the latter case, cyber security becomes ultimately the duty of information technology specialists who design and maintain the agency’s computer networks.

AN UNDERGROUND RIVER RUNS THROUGH IT

Posted on November 8, 2017 by Andrew Goddard

Environmental groups have for years sought greater regulation of coal ash waste from coal-fired power plants.  It turns out an old-fashioned Clean Water Act (CWA) citizen suit is sometimes a more effective tool.

In August, Judge Waverly Crenshaw, of the U.S. District Court for the Middle District of Tennessee, ordered the Tennessee Valley Authority to “wholly excavate the ash waste disposal areas” at the Gallatin Steam Plant and “relocate the excavated coal ash to a lined impoundment with no significant risk of discharge to waters of the United States.”  TVA estimates that this will take 24 years at a cost of $2 billion.  The least surprising aspect of this case: TVA has filed a notice of appeal.

How?  In 2015, the Tennessee Clean Water Network and the Tennessee Scenic Rivers Association filed a CWA citizen suit claiming that groundwater flowed through two ash pond areas and then to the nearby Cumberland River was an unpermitted point source.  Judge Crenshaw’s 125-page opinion in support of the Order includes this diagram showing one zone of earth penetrated only vertically (by storm water) and one penetrated both vertically and laterally (by storm water and groundwater):

 

This pretty much sums up the central issue in the case:  Is the groundwater flow through the lower part of coal ash landfill, picking up contaminants and transmitting them laterally to the Cumberland River, regulated by the CWA?

In his lengthy opinion, Judge Crenshaw found that the CWA does regulate groundwater where there is a direct and immediate hydrologic connection if plaintiffs are able to “prove a link between contaminated groundwaters and navigable waters.”  TVA argued that the CWA cannot reach discharges enabled by infiltration of rainwater that was not channeled by human act because they are not point sources, but Judge Crenshaw found that the ultimate question regarding point source is whether the pollutants were discharged from a discernable, combined, and discreet conveyance by any means.  He found that the entire ash dewatering complex was a discernible, combined and discreet manmade concentration of waste and that it was a “conveyance” because it is “unlined and leaking pollutants,” and thus is by definition “conveying pollutants.”

It takes a lot for a judge to impose $2 billion of costs on a public utility.  His displeasure with how the problem had been addressed over the past several decades was palpable.  He wrote that the older of the two coal ash sites

“…offers a grim preview of what it means to leave an abandoned unlined coal ash waste pond in place next to a river.  [It] has not been a waste treatment facility for over forty-five years. It has been ‘closed’ for almost twenty years.  Still, water infiltrates it.  Still, it leaks pollutants.  Still, counsel for TVA and counsel for environmental groups are locked in conflict about what can and should be done about it. … As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties and conflicts giving rise to this case will survive another 20 years, 45 years or more.  While the process of closure by removal would not be swift, it would, at least, end.” 

With that, he ordered that TVA remove the coal ash to an appropriate lined site that will not discharge into waters of the United States.

There was one bit of good news for TVA: because of the cost of the chosen remedy, Judge Crenshaw decided not to assess penalties. 

Not every argument was about such large costs.  TVA’s objection to the plaintiffs’ request for attorney’s fees and costs included an objection to caviar included in a claim for $200 for food and snack items purchased from Kroger before and during the trial.  The plaintiff’s response included a receipt showing the “caviar” purchase was $16.24 of “Texas Caviar,” and attached Kroger’s recipe therefor.  It is devoid of fish eggs but does include chopped cilantro.  The recipe is available through PACER here.

TIME FOR ACOEL TO STAND UP FOR ENVIRONMENTAL LAW

Posted on November 6, 2017 by Stephen L. Kass

On this 10th anniversary of the founding of ACOEL, it is appropriate to devote some thought to what we have achieved in furthering ACOEL’s goals of “maintaining and improving the ethical practice of environmental law; the administration of justice; and the development of environmental law at both the state and federal level.” My focus here is on the most significant threat in our history to our third goal (development of environmental law) and, as a consequence, our second goal (administration of justice).

For the first time since the enactment of the National Environmental Policy Act (NEPA) in 1970, our federal government is led by officials (the President, the EPA Administrator, the Secretaries of Energy and Interior, the Attorney General and White House staff)  openly committed to eviscerating or repealing  large portions of the federal laws on which environmental protection in our country is premised.  While there have been times when new administrations,  EPA Administrators or Cabinet Secretaries have sought to reverse policies or programs under individual statutes, our nation has not previously experienced a wholesale attack on the entire range of protections promised by NEPA, the Clean Air Act, the Clean Water Act, the Superfund Law, the Toxic Substances Control Act, the Oil Pollution Act, the Endangered Species Act, the Coastal Zone Management Act and a myriad of less well-known laws and regulations that have helped the U.S. confront our own environmental challenges while leading the world in the development of environmental law.  Because environmental impacts are increasingly recognized as disproportionately affecting the poor, the curtailment of environmental enforcement under many of these laws also undermines the belated efforts our nation has begun to make toward environmental justice.  The White House’s and EPA’s joint denial of human-induced climate change (and the censoring of EPA employees who attempt to speak about it) is the most visible – and dangerous – part of this initiative, but it is only part of the larger effort to rescind or hollow out the body of environmental law on which our nation, and the world, have come to depend.

ACOEL should speak and act to reverse this dangerous and irresponsible trend within our federal government.  I recognize that many of our individual members, or their firms, may represent one or more clients who believe that, at least in the short run, their businesses will benefit from fewer environmental regulations, more lenient enforcement of environmental standards or the reversal of efforts to reduce greenhouse gases.  Because of their professional commitments, it is of course appropriate, and in some cases necessary, for those ACOEL members to recuse themselves from participation in any such statements or actions by our organizations as a whole.  Yet ACOEL has acted as an institution in the past in advising ECOS (the Environmental Council of the States) on Clean Air Act and Clean Water Act developments, and we are currently carrying out, or planning, important environmental law training programs in Africa, Asia and Cuba.  To do that with credibility requires that we actively defend, both publicly and privately, the corpus of environmental law of which we are justly proud in our own nation.  ACOEL’s goals, and our organization’s significance, require that we do no less.

Court Rejects BLM’s Efforts to Unbalance the Scales of Justice

Posted on November 6, 2017 by Seth Jaffe

Last month, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands.  If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise.  BLM based its postponement of the compliance deadlines on § 705 of the APA, which authorizes agencies to “postpone the effective date” of regulations “when justice so requires.”  However, every court that has looked at the issue has concluded that the plain words of the APA apply only to the “effective date” of a regulation and not to any “compliance date” contained within the regulation.

It seems clearly right to me.  For Chevron geeks out there, I’ll note that the Court stated that, because the APA is a procedural statute as to which BLM has no particular expertise, its interpretation of the APA is not entitled to Chevron deference – a conclusion which also seems right to me.

What particularly caught my eye about the decision was the Court’s discussion of the phrase, “when justice so requires.”  In a belt and suspenders bit of analysis, the Court also made findings that justice did not require postponement.  BLM’s argument was that justice required the postponement because otherwise the regulated community would have to incur compliance costs.  However, as the Court noted, “the Bureau entirely failed to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced public revenues.”  Indeed:  

If the words “justice so requires” are to mean anything, they must satisfy the fundamental understanding of justice: that it requires an impartial look at the balance struck between the two sides of the scale, as the iconic statue of the blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” Without considering both the costs and the benefits of postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” of the problem into account and was therefore arbitrary.

I think I detect a theme here.  Some of you will remember that Foley Hoag filed an amicus brief on behalf of the Union of Concerned Scientists, supporting the challenge to President Trump’s “2-for-1” Executive Order.  We made pretty much the same arguments in that case that Magistrate Judge Laporte made here – minus the reference to the scales of justice.

Unless SCOTUS gets rid of all agency deference, the Trump Administration is going to get some deference as it tries to eliminate environmental regulations wherever it can find them.  However, if it continues to do so while looking solely at the costs of the regulations to the business community, while ignoring the benefits of the regulations, it’s still going to have an uphill battle on its hands.

“Let No Man Put Asunder:” The Act of God Defense and Climate Change

Posted on November 2, 2017 by Peter Hsiao

Following the punishing hurricanes in the gulf coast and island regions of the United States, concern immediately turned to the environmental impacts of toxic releases from damaged chemical facilities.  EPA reports that 13 of the 41 Superfund sites in the area were flooded by Hurricane Harvey.  High winds and rain damaged the protective cap at the San Jacinto River Waste Pits, risking the escape of dioxin contaminated sediments, and EPA ordered the responsible companies to take immediate action.  Even without an order, facility owners will often act as quickly as possible to contain any spills and mitigate their impacts. 

But as a matter of law, would there be a basis to defend against the EPA order or claims for response costs by asserting the Act of God defense?  CERCLA and the Oil Pollution Act both provide a complete defense to liability if the party can show that the release of hazardous substances (or petroleum under the OPA) was caused solely by an act of God.  The defense is severely limited by the requirement that a natural disaster must be “unanticipated” and an “exceptional” event.  For example, CERCLA’s legislative history says a major hurricane may be an act of God, but may not qualify as unanticipated or exceptional in an area where hurricanes are common.  Reportedly there are no cases where the defense has been successfully raised.

A superstorm such as Hurricane Harvey may present a more compelling case for this defense.  While hurricanes are expected in the area, an event that unleashed an estimated 19 trillion gallons of water can be considered exceptional and arguably unforeseeable, even with the recent history of other superstorms (e.g., Sandy, Katrina).  Successfully asserting the defense will likely depend upon expert testimony showing the facility implemented enhanced protective measures before the storm, probably true for most major industrial facilities in the affected area, and that exceptional circumstances overwhelmed those measures, which circumstances could not have been anticipated or prevented even by the exercise of due care or foresight.  

Comparing the precautions taken by other similarly situated facilities will also be important to establish the standard of care.  For example, the Texas environmental agencies worked with chemical facilities before the storm to protect hazardous waste containers from damage and flooding, and any facility asserting the defense will likely need to have undertaken similar precautions to have any chance of success.  For a toxic tort case, there is no statutory Act of God defense, but the same types of arguments will be used to show the facility exercised due care and reasonable foresight in taking protective measures. These issues will also be presented in insurance claims and litigation regarding coverage disputes. 

The defense however has an additional requirement, that the Act of God not be the result of human action, such as from greenhouse gas emissions.  While the relationship between climate change and these superstorms may not be known until years of further study, there is preliminary evidence that global warming made the storms worse by increasing ocean temperatures and raising the sea level, intensifying the impacts of its wind speed, rainfall and storm surges. 

So the Act of God defense may become impossible to win for a superstorm if man-made contributions were a factor – but is this meaningful?  The defense has never been successfully asserted in any event.  But if an alternative causation for a superstorm can be proven by a preponderance of the evidence, there is a potential basis for the responsible party under CERCLA or a tort theory to seek contribution or otherwise allocate a proportionate share of liability to others.  And the large number of “other” potential defendants who contributed to global warming will raise difficult issues of justiciablity.  The recent superstorms may produce a test case with the right combination of circumstances to squarely present these issues to a court. 

That is, while not a complete defense, climate change may provide new theories for defendants.  When a door closes, a window may blow open.

Superfund: After Nearly Forty Years, Still a Work in Progress

Posted on October 19, 2017 by William Hyatt

Since its enactment, the Comprehensive Environmental, Response, Compensation and Liability Act of 1980, commonly known as the Superfund statute, has probably received more diagnostic attention than any other environmental law.  That is not surprising, considering EPA has devoted more resources to the Superfund program than to any other program the agency administers.  Matters were not helped by the program’s rocky start, with allegations of impropriety swirling around the agency and the head of the Superfund program winding up in jail. Meanwhile, the liability regime designed to fund the Superfund program spawned an avalanche of litigation, resulting in crushing transaction costs.  Over the years, the Superfund program has been consistently controversial and has undergone a steady stream of “reforms,” reports to Congress and GAO studies. The statute itself has also been repeatedly criticized, including by the Supreme Court, for its lack of clarity.

As two recently released reports attest, the diagnostic process continues.  Both reports should be required reading for Superfund practitioners, but the question remains whether the underlying structural problems of the statute have been, or even can be addressed.

The first report is a paper commissioned by the American Council of Engineering Companies, entitled Superfund 2017, Cleanup Accomplishments and the Challenges Ahead.  The author, Katherine Probst, is a longtime, thoughtful commentator on Superfund matters and was a key member of the Resources for the Future team that issued a 2001 Report to Congress, entitled Superfund’s Future: What Will It Cost? A Report to Congress.  Her latest effort is largely a report card on the Superfund remedial program, lamenting the lack of sufficient information to conduct a thorough diagnosis. She makes a number of recommendations that the missing information be gathered, following which a new diagnosis would presumably be undertaken. In the meantime, the Probst report makes a number of interesting, but telling observations. For example, right from the start, EPA has struggled to measure the success of the cleanup program, but Probst points out that even though a significant percentage (24%) of non-federal sites have been deleted from the National Priorities List (NPL), and another 48% have been deemed “construction complete,” seven percent of sites on the NPL are still characterized as “human exposure not under control” and another 10% lack sufficient data to make a protectiveness determination.  Federal funding for Superfund continues to decline; states also face shrinking resources.  Not surprisingly, cleanup progress has slowed, not just for lack of funds, but also because the sites in the cleanup program today tend to be far more complex (and expensive) than the NPL sites of the past. EPA finds itself continuing to implement a prescriptive cleanup program that was not designed for many of the more complex sites on the 2017 NPL (e.g., mining and contaminated sediment sites).

The second document, entitled Superfund Task Force Recommendations, was issued by EPA in June, 2017. The Task Force was charged by the Administrator “to provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country.”   These familiar themes led the Task Force to identify five basic goals, forty-two recommendations and various strategies for improving the Superfund program.  All the goals and recommendations are directed at speeding up the process of cleanup.  For example, one strategy advocates the use of “adaptive management” to expedite cleanup through use of early actions, interim records of decision and removal actions. Another advocates more centralized management of complex sites to assure consistency and aggressive oversight.

Even if all the recommendations contained in these two latest reports were to be accepted and implemented, the Superfund program would likely still be highly controversial with many of the challenges identified in the early days of the program still remaining to be solved.  Among those challenges are the following:

·         Is the National Contingency Plan (NCP) still the best “cookbook” for cleanup?  If not, what changes should be considered to achieve cleanup faster and better? Is the Superfund program too “process heavy?”  Is amendment of the NCP even politically feasible?

·         How can cleanups be accomplished with less study?  Particularly at complex mega-sites, NCP-compliant studies can take far too long.  Is the NCP process too prescriptive and too inflexible? 

·         How to measure success?  Should the key measurement be “construction complete,” or deletion from the NPL, or reduction of risk, or something else?  Should there be intermediate metrics of success?

·         Should there be greater centralized management of the Superfund program, as the report of the Superfund Task Force appears to advocate?  How should that be accomplished?  What is the appropriate role for CSTAG and NRRB?

·         How clean is clean?  Should the Superfund program chase every last molecule of hazardous substances, or reduce risk as quickly as possible?  Should there be greater use of the removal program?  As the saying goes, is “perfect the enemy of good?”

·         What should “cost effectiveness” mean in context of the Superfund program? Should proposed remedies be subjected to a cost-benefit analysis?

·         What is the proper role of EPA “guidance” in implementing the Superfund program?  Should guidance be binding on EPA?  Could that happen without notice and comment rulemaking?

·         Are the remedies implemented thus far in the Superfund program really effective?  For example, many groundwater cleanup programs were projected to have cleaned up contaminated groundwater by now.  Has that happened?  Can the pumps be turned off?

·         Should federal funds be used to leverage private party investment in cleanups?  Does EPA’s orphan share policy strike the right balance?

·         Does the statute strike the right balance between the federal and state interests in cleanup?  Should EPA and the states be true “partners”?

·         Should the lapsed Superfund tax be reinstated?  If so, in what form?

·         Finally, is there a role for fairness in Superfund?  Is the ban on pre-enforcement review too harsh a standard?

As this list of challenges demonstrates, Superfund will almost certainly remain a key subject for continued diagnosis in the future.

EPA Beginning Anew at Portland Harbor Superfund Site?

Posted on October 18, 2017 by Rick Glick

Although no official pronouncement has been issued, it appears that EPA Headquarters is looking at resetting the scoreboard for the Portland Harbor Superfund site.  EPA had already signaled that it would be reviewing significant, long-unresolved Superfund sites with an eye toward streamlining the process.  However, the latest action on Portland Harbor may have the opposite effect, since EPA has not yet involved major stakeholders, including the State of Oregon, City of Portland, Port of Portland, or the tribes.

Portland Harbor is an 11-mile stretch of the Willamette River in industrial Portland.  After a 17-year, PRP-led remedial investigation process, at a cost exceeding $110 million, EPA Region 10 issued a Record of Decision (ROD) in the closing hours of the Obama Administration.  The ROD itself recognized that the baseline data upon which Region 10 relied in selecting its preferred remedy had grown stale, and called for another site-wide round of sampling prior to any Remedial Design for specific facilities. 

EPA now is negotiating with certain, undisclosed private responsible parties on an Administrative Order on Consent (AOC) and a new sampling plan.  A review of the current draft drew a sharp response from Oregon Department of Environmental Quality Director Richard Whitman.  In a letter dated October 5, 2017 to Acting Regional Administrator Michelle Pirzadeh, Whitman invoked a 2001 Memorandum of Understanding between EPA, the state and tribes on the process for investigation and cleanup of Portland Harbor.  The letter criticizes EPA for keeping the state in the dark and demands the opportunity to fully participate in and comment on the new planning work.  Similar objections were raised by Governor Kate Brown, the City of Portland and the Yakama Nation.

Director Whitman also voiced substantive concerns with new directions in the draft AOC.  These include revisiting assumed fish consumption rates, a “reset of achievable remedy targets/actions,” and a focus on downstream sites with “data gaps” within Portland Harbor itself.

There is much to be critical of in Region 10’s handling of the Portland Harbor site, and revisiting the Region’s conclusions is appropriate.  The assumptions driving the cleanup approach, emphasizing removal over natural riverine processes, could cost well over $1.5 billion for questionable environmental benefit.  Indeed, had EPA not added Portland Harbor to the National Priority List, Oregon DEQ would likely have implemented a cleanup plan incorporating routine Army Corps of Engineers maintenance dredging of the Willamette River at far less cost.  The resulting economic hit to the region will be enormous.

Still, I am reminded of Sen. John McCain’s famous thumbs down vote on bills to repeal and replace the Affordable Care Act.  Apart from substantive elements of the bills, Sen. McCain decried the absence of “regular order” in enactment of major legislation.  That is, the congressional leadership bypassed the usual committee and collaborative review that identifies and fixes problems with the bill and lends legitimacy to the outcome. 

Region 10 has responded well to the criticism.  Acting Administrator Michelle Pirzeda, sent a reply letter offering assurances that the state, city and tribes will be involved going forward.  The letter sets a deadline of October 24 to submit comments on the draft plan.

While unnecessary confrontation over who may participate in the process is averted for now, the substance of the Portland Harbor reset is likely to be contentious.  Watch this space for developments.

EPA Proposes to Defund Superfund Litigation

Posted on October 12, 2017 by David Uhlmann

The Trump administration has unleashed a withering assault on environmental protection efforts that seeks to roll back decades of bi-partisan efforts to provide clean air and water in the United States.  Environmental groups and state attorneys general are challenging the EPA in court over its proposals to repeal the Clean Power Plan, the Clean Water Rule, and dozens of lesser-known regulatory programs.  While those lawsuits have achieved some initial success, based on EPA’s failure to comply with the Administrative Procedures Act, there is justifiable concern about the fate of EPA’s regulatory programs.

But less attention has been paid to a rollback buried in the EPA’s FY 2018 budget, which also might have devastating impacts:  the proposal to end EPA funding of Superfund litigation by the Justice Department.  Since 1987, the EPA has reimbursed the Justice Department for the cost of bringing Superfund cost recovery cases, with as much as a third of the Environment and Natural Resources Division (ENRD) budget devoted to Superfund work.  (This year, ENRD was expecting about 20 percent of its funding to come from the EPA.)  The cost-sharing arrangement is enormously beneficial to the Superfund program, which receives hundreds of millions of dollars of cost recovery every year in cases litigated by ENRD.

EPA's effort to defund cost recovery litigation could lead to layoffs at ENRD, cripple the Superfund program, and undermine criminal and civil enforcement of the environmental laws.  The proposal has all of the features of another Trump administration executive fiat that could fly under our collective radar.  It deserves condemnation from everyone who cares about public health and the environment, as I explain in an October 4th New York Times op-ed entitled Undermining the Rule of Law at the EPA.

Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

From High Within the Ivory Tower, the Tenth Circuit Decides That a Third-Party Liability Policy Doesn’t Cover Third-Party Environmental Liabilities

Posted on October 9, 2017 by Thomas Hnasko

In an unpublished decision in Taos Ski Valley, Inc. v. Nova Casualty Co., the Tenth Circuit decided the so-called “owned or occupied property” exclusion in a third-party comprehensive general liability (“CGL”) policy barred coverage for the third-party damage claims asserted by the New Mexico Environment Department against Taos Ski Valley (“TSV”) because the petroleum-product contamination, through the expedient efforts of TSV, was successfully confined to the boundaries of property occupied by TSV and did not impact groundwater, a third-party resource owned by the State of New Mexico.  In so doing, the Court reasoned language added to the owned or occupied property exclusion, which barred coverage for damage to the insured’s property “for any reason,” was sufficient to disclaim coverage.

The Tenth Circuit was not persuaded by the reasoning of Judge Pozner and others that, under a CGL policy, the location of the damage is immaterial; rather, it matters only that the damage caused an immediate third-party liability instead of damage only to the insured’s first-party property interests.  Moreover, the Court was not persuaded by the argument that environmental practitioners can now advise their clients to defer environmental clean-ups until property owned by the public (as a third party), i.e., the groundwater aquifer, is damaged.  The Court summarily concluded that, in such an event, the policy would foreclose coverage on another basis, because the damage to the groundwater would be expected and intended by the insured.  Certainly any environmental practitioner knows this is pure folly.  Simply instructing an environmental consultant to schedule the groundwater sampling on Thursday, as opposed to Tuesday, might well do the trick to ensure publicly-owned water resources, as opposed to just soil, suffer environmental harm and trigger coverage under the CGL policy.  More importantly, it is unfortunate the Court actually believes the New Mexico Supreme Court, as a matter of state law, would sanction a result encouraging the pollution of our resources, instead of prompt environmental clean-ups, in order to secure insurance coverage.  Claims of environmental contamination, after all, constitute damage to the public, as a third party, whether damage occurs within or outside of the boundaries of property owned or occupied by the insured.

HIPPOS, THE DANCE OF THE HOURS, AND THE TRUMP ADMINISTRATION

Posted on October 5, 2017 by James Holtkamp

The award-winning 1940 movie Fantasia includes a segment with a bevy of hippopotami in tutus preforming the Dance of the Hours. It is a remarkable depiction of an alternate reality in which the law of gravity doesn’t seem to apply.  The 2017 version of an alternate reality is the Trump Administration’s perspective on climate change.  Like the hippos in Fantasia, Messrs. Trump and Pruitt and other Administration officials are trying to ignore inexorable laws of nature and human behavior.  Unlike the hippos, they will not succeed (reserving judgment on whether they will look as nice in their tutus).

In June, Mr. Trump announced the withdrawal of the U.S. from the Paris Agreement, claiming that it was a ”bad deal” that would “kill American jobs.” With Nicaragua belatedly deciding to sign on to the Agreement, the only two countries left that are not participating in the Agreement are the U.S. and Syria.  (Nicaragua, by the way, initially refused to sign the Agreement, not because it thought the Agreement was too stringent, but rather that it wasn’t stringent enough.)

Meanwhile, Category 5 hurricanes march through the Gulf of Mexico and the Caribbean, epic droughts wither the Pacific Coast, sea lanes in the Arctic are open for the first time in recorded memory, and entire islands disappear beneath rising seas.  The human cost of these and other climate-related events is immense.

The preamble to the Paris Agreement identifies the following climate-vulnerable areas of society:

·         Poverty-stricken populations

·         Food security

·         Quantity and quality of jobs

·         Human rights

·         Health

·         Indigenous peoples

·         Local communities

·         Migrants

·         Children

·         Gender Equality

·         Empowerment of women

·         Intergenerational equity

·         Ecosystem integrity

·         Justice

The rejection of the Agreement by the Trump Administration represents a denial of the broad impact of climate change on society as articulated in the Agreement.  Like the hippos in the dance, the Administration wants to live in a world in which the laws of nature don’t apply.  But real-world hippos and the rest of the inhabitants of the planet (including all of us and our children and grandchildren) will suffer the consequences of their denial of reality.

Looking for Shelter under the Permit Shield

Posted on October 4, 2017 by George House

As a follow up to Kenneth Gray’s post on PFASs, the PFAS situation in the lower Cape Fear River of North Carolina is a new battleground for the Clean Water Act NPDES permitting process.  GenX is a product that DuPont, and now Chemours, began manufacturing in or about 2010 as a substitute for PFOA of Parkersburg fame.  When GenX is used in other processes at the same plant facility, it is released in the process wastewater as a byproduct.  While testing Chemours discharge for GenX, two other perfluorinated compounds, identified by EPA as PFESA Byproducts 1 and 2, were discovered.

The Department of Environmental Quality (DEQ) of North Carolina sued Chemours (spin-off of DuPont) on September 7, 2017 and sought injunctive relief from the North Carolina Superior Court for an order requiring Chemours to, “immediately cease discharging the substances identified as PFESA Byproduct 1 and PFESA Byproduct 2  . . . from its manufacturing process into the surface waters . . . and, to continue to prevent the discharge of process wastewater containing GenX into the waters of the State.”   DEQ alleged among other things that Chemours and its predecessor DuPont, “failed to timely disclose to DWR (the permitting authority) the discharge of GenX and related compounds into the Cape Fear River” and, “In particular, none of the DuPont and Chemours NPDES permit applications referenced ’GenX’ or any chemical name, formula, or CAS number that would identify any GenX or related compounds in the Facility’s discharge.”  Further, DEQ alleged, “Part of the permit applicant’s burden . . . is to disclose all relevant information, such as the presence of known constituents in a discharge that pose a potential risk to the human health.” 

By letter from counsel dated September 8, 2017, Chemours responded, “The NPDES permit specifically describes the portion of the Fayetteville Works’ complex that generates the PFESA’s and, in accordance with well- and long-established NPDES permitting practice as construed and ratified by the courts, this is sufficient for the discharges to be covered by the permit . . . . chemical substances did not have to be enumerated by name in Chemours’ NPDES permit in order to be covered under the permit, so long as the process from which they were generated was described in the permit.”  Chemours further stated that this situation, “characterizes the circumstances that also prevail at countless permitted facilities throughout North Carolina and the rest of the United States, where numerous untested and unregulated trace-level compounds are present in permitted discharges”.

North Carolina courts will now have to grapple with the issues presented in Piney Run Pres. Ass'n v.Cnty. Comm'rs that was recently cited with approval in S. Appalachian Mt. Stewards v. A&G Coal Corp., both Fourth Circuit cases, and rule upon the issue of how much information a permit applicant must disclose to successfully avail itself of the “permit shield.”

Doing the Environment in My Retirement

Posted on October 3, 2017 by Ben Fisherow

It’s been sixteen months since retirement … or have I just been on a sabbatical?  The days have been full enough and way too stress-free seriously to consider going back.  So, it now seems it will be retirement for sure, and not return, but the urge persists to be RESPONSIBLE and to feel at least some pressure to perform.  How to achieve the latter without reverting to the former?

I have volunteered to teach environmental enforcement to old fogies (like me) at one of our nearby adult education outlets – the Osher Lifelong Learning Institute.  Rather than go all-in to this teaching gig, I will try myself out during OLLI’s 3-day “February Shorts” that run between the normal lengthy Fall and Spring sessions.  Compressing thirty years of experience enforcing the nation’s major environmental statutes into three 90 minute lectures will be interesting.  What’s more, the talks need to be entertaining, which means a Power Point with visuals and music (Remember Randy Newman’s “Cuyahoga River?”).  Thank God for the help of my daughter-in-law.

I am also applying to the District of Columbia’s Master Gardener program.  This promises to be quite cool because after 8 weeks of classroom instruction, one needs to volunteer 50 hours of community service to obtain the Master’s certificate.  Since my tech-savvy daughter-in-law is the principal of an elementary school, and they need some help around the grounds, I’ll have the chance to really accomplish some things. 

Moreover, DC like many other cities has been grappling with the problems posed by the runoff of stormwater into its sewer system where it combines with normal flows of industrial and residential waste.  The increased volume of this combined sewage during wet weather, which often exceeds the capacity of the District’s system to treat, must be discharged from several outfalls, untreated, directly into the Anacostia and Potomac Rivers.  The threats to the public and aquatic life are obvious.  “Green infrastructure” projects are an innovative approach to intercepting excess wet weather flows before they reach stormwater drains.  They could present a feasible alternative to building new, massive, underground tunnels to store combined sewage until it can be properly treated and safely discharged from the District’s single large sewage treatment plant at Blue Plains. 

The District is working with EPA to substitute green for gray infrastructure as one way to achieve the sewage discharge reductions the Clean Water act requires.  And, so far, it appears EPA has been willing to accommodate increased neighborhood green spaces, roof gardens, permeable pavement and the like as potential alternatives to the disruption that construction of deep tunnels could cause.  With my Master’s certificate in hand, I hope to present myself to the District as a worker to help them Implement some of their green infrastructure initiatives.

Pretty good ideas, I think.  Whether I succeed with any of them remains to be seen.