Coal Ash Rulemaking

Posted on February 21, 2013 by Andrew Brown

In December 2008, a surface impoundment maintained by the Tennessee Valley Authority in Kingston, Tennessee failed and the coal combustion residuals (CCRs) stored in those impoundment flooded more than 300 acres of land and flowed into Emory and Clinch Rivers.  CCRs, often referred to as coal ash, are residues from the combustion of coal in power plants that are captured by scrubbers and other pollution control equipment.  CCRs are currently exempt wastes under RCRA but following the TVA spill EPA proposed to regulate coal ash for the first time. 
 
On June 21, 2010, EPA issued its proposed CCR rule.  The proposed regulation considers two options for the regulation of CCRs.  Under the first option, CCRs would be regulated as special wastes subject to nearly full regulation as hazardous wastes under RCRA Subtitle C.  If CCRs are regulated as “hazardous waste,” disposal will likely be required at specially-permitted, off-site hazardous waste disposal facilities.  Under the second option, CCRs would be regulated as solid waste under Subtitle D of RCRA.  Under this option, EPA is likely to establish national standards for surface impoundments and landfills.   If CCRs are regulated under Subtitle D, it is likely a composite liner, a leachate collection and removal system, and a leak detection system will need to be installed at existing ash ponds.
 
EPA has not yet taken final action on the proposed CCR rule and has been sued by an environmental group who seeks the issuance of the final rule.   In that case, Appalachian Voices v. Jackson, the Agency stated “EPA cannot at this time provide a well-informed judgment as to the specific amount of time that is needed to conclude its review and any necessary revisions of these regulations, and EPA therefore requests an opportunity, following further administrative proceedings, to provide this Court with supplemental briefing at a later date regarding final remedy.”  Two actions (I, II) were consolidated in the Appalachian Voices case. EPA has indicated that the final CCR rule is not likely to be issued before the fourth quarter 2013. 

FRACKING FRACAS IN A LOCAL LABYRINTH

Posted on February 19, 2013 by David Buente

Oil and gas development has traditionally been regulated by the states, and the majority of the states with viable shale reserves have adopted laws or regulations that directly address hydraulic fracturing.  However, several local governments have responded to concerns over potential health and environmental impacts by banning hydraulic fracturing within their jurisdictions.  To date, local bans have been enacted in Colorado, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and West Virginia.  In several cases these local bans have been challenged as being preempted by comprehensive state regulation of oil and gas development.  While there is very little appellate case law addressing the legality of local bans, two preemption cases are currently on appeal in New York.  Norse Energy Corp. USA v. Town of Dryden, No. 2012-1015 (N.Y. App. Div.); Cooperstown Holstein Corp. v. Town of Middlefield, No. 2012-1010 (N.Y. App. Div.).  In each case, the local trial court upheld a local ban on hydraulic fracturing, finding that preemption language in the state’s Oil, Gas, and Solution Mining Law (“OGSML”) did not apply to local land use regulations. 

Appellant natural gas developers rely primarily on the OGSML’s preemption provision, arguing that its broad language was intended to preempt all local ordinances and regulations related to oil and gas development unless they are directed toward local roads or real property taxes.  They also emphasize the broad scope of DEC’s oil and gas regulations which go beyond regulating how oil and gas development is conducted and also address spacing requirements and other limitations on where oil and gas development can occur.  Thus, they assert that any local ordinance that limits where hydraulic fracturing can occur is superseded by the OGSML.  The natural gas developers also argue that under implied preemption principles and New York’s constitutional limits on home rule authority, local governments cannot prohibit hydraulic fracturing because such regulations are in direct conflict with the OGSML’s provisions that dictate where oil and gas development can occur.  Finally, the natural gas developers argue that the trial court’s reliance on supersedure provisions from other statutes was misplaced due to key differences in the language of the supersedure provisions as well as the relatively broader scope of DEC’s regulatory authority under the OGSML.   

In contrast, the towns of Dryden and Middlefield assert that local prohibitions on hydraulic fracturing can be harmonized with the OGSML and its preemption provision.  They argue that the local bans on hydraulic fracturing were not enacted for the purpose of regulating natural gas development, but instead are part of comprehensive land use plans designed to protect the public health, safety, and general welfare of the local community.  Because the purpose of the prohibitions are not to “regulate” natural gas development, the towns contend that the prohibitions are not subject to the OGSML’s preemption provision.  Instead, they argue that such local bans can be harmonized with the OGSML by limiting the OGSML’s well spacing and setback provisions to those areas where oil and gas development is otherwise permitted.  Further, the towns argue that the trial court properly relied on earlier cases interpreting the supersedure provisions of the Mined Lands Reclamation Law (“MLRL”).  The towns assert that the supersedure provisions in the MLRL and OGSML are substantially similar and, therefore, should be given similar effect.  Thus, the towns assert that the prior cases that upheld local ordinances banning mining practices that were subject to regulation under the MLRL are binding precedent here. 

Oral argument has been scheduled for March 21, 2013 and a final decision is not expected for several months, at the earliest.  However, these cases will be closely watched in other jurisdictions where local bans on hydraulic fracturing have been enacted and where additional litigation is expected.  Given the diversity among state laws addressing both home rule authority and oil and gas development, the legality of local bans on hydraulic fracturing is likely to remain a hotly debated issue for several years to come, particularly as oil and gas development using hydraulic fracturing continues to expand to new shale reserves around the country.

Kentucky-Specific Water Quality Standard for Selenium

Posted on February 14, 2013 by Carolyn Brown

The Clean Water Act requires states, as well as Indian tribes, to review their water quality standards every three years.  The water quality standards include narrative and numeric criteria that differ based on the type of use designation for the particular stream.  Use designations include warmwater aquatic habitat, cold water aquatic habitat, primary and secondary contact recreation and others.  The Kentucky Division of Water has been engaged in the triennial review of the state’s water quality standards since early 2012.  In the latest development, the agency asked the legislative committee that reviews agency regulations to defer consideration of the rules for another month while the agency takes comment on a change to the state’s standard for selenium.

The Kentucky regulations address a number of changes to the water quality standards and included proposed deletion of the acute water quality criterion for selenium.  The proposal to delete the acute standard was based on findings that the current state standard, which was derived from USEPA guidance, was not based on sound science.  USEPA Region 4 commented on the proposed deletion and identified three options: (1) leave the current acute criterion in place and wait for release of any revisions to USEPA’s selenium criteria, (2) adopt the acute criterion from USEPA’s current national guidance, or (3) adopt an alternate criterion based on other scientifically defensible guidance.

In response, the Division conducted a survey of recent studies of selenium toxicity to aquatic species and determined that it was appropriate to develop state-specific water quality criteria for selenium.  The agency is proposing an acute criterion for warmwater aquatic habitat of 258 ug/L, with an alternate calculation option depending on the sulfate concentration that is present.  The proposed chronic criterion for warmwater aquatic habitat is 8.6 ug/g (dry weight) of whole fish tissue or 19.2 ug/g (dry weight) of fish egg/ovary tissue.  The analysis of fish tissue is triggered when the water column concentration of selenium exceeds 5.0 ug/L.  If the water column result is less than or equal to 5.0 ug/L, the water body is meeting is aquatic life uses.  If the water column result is greater than 5.0 ug/L, then the next step is to determine whether the site is attaining the fish tissue or egg/ovary tissue criterion.

Stay tuned as interested parties weigh in on the state’s proposed action.

Seventeen States Join a New Association of Air Pollution Control Agencies

Posted on February 13, 2013 by Robert Brubaker

The current Clean Air Act retains the premise in the Clean Air Act of 1963 that "the prevention and control of air pollution at its source is the primary responsibility of States and local governments."  Among the many balancing acts embedded in the text of the Clean Air Act, the balance between federal and State prerogatives is one of the more challenging. 

Over time, the accumulation of requirements, and the multiplication of more requirements at a faster and faster pace, puts strains on the Clean Air Act's ideal of "cooperative federalism."  In the present era of divided government and increasing political polarization, tensions between EPA and the States, and between certain States, are on the rise.  For example, EPA has been sued by some States to force more aggressive regulation of greenhouse gas emissions, and by other States to force less aggressive regulation of criteria pollutants that cross State boundaries.  The "turbulence inherent in [the Clean Air Act's] divided relationship" was noted in William Session's December 14, 2012 post

While sharp contrasts on energy policy get most of the publicity, it is the small things – the finer details of regulation of sources classified as "minor" or "insignificant" under the statute and regulations – that account for a disproportionate share of the friction with regard to federal versus State prerogatives.  Tensions over State discretion – particularly with regard to environmentally inconsequential mandates, land  use, and small businesses – are not new to the Clean Air Act.  Soon after her transition from head of the Florida Department of Environmental Regulation to Administrator of EPA twenty years ago, Carol Browner said:

When I worked at the state level, I was constantly faced with rigid rules that made doing something 100 times more difficult and expensive than it needed to be.  It makes no sense to have a program that raises costs while doing nothing to reduce environmental threats. 

A new Association of Air Pollution Control Agencies, launched in January 2013, holds promise for enhancing the State-federal partnership basic to the design of the Clean Air Act.  The primary goals of the new association are to help the States assist each other in carrying out their responsibilities under the Clean Air Act, and to better understand EPA requirements as they evolve.

The AAPCA selected Battelle Memorial Institute, the world's largest non-profit research and development organization, to provide technical assistance and organization and staffing support.  The initial seventeen participants in the AAPCA are:  Alabama, Florida, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, New Mexico, Nevada, North Dakota, Ohio, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wyoming.  If the new AAPCA improves the technical proficiency of State air pollution control agencies, and increases the level of cooperation and collaboration between EPA and State air agencies, it will well serve the design of Congress and the interests of the nation.

Adaptive Management -- Wisconsin’s Innovative Approach to Phosphorus Discharges

Posted on February 12, 2013 by Linda Bochert

In December 2010, the Wisconsin Department of Natural Resources (WDNR) put into place new rules to control phosphorus discharges.  Adaptive management is one of  four compliance options allowed under these new rules.  But what is “adaptive management”?

WDNR developed adaptive management to provide permittees with a less expensive, more flexible compliance option, and describes adaptive management this way:

 “a phosphorus compliance option that allows point and nonpoint sources (e.g., agricultural producers, storm water utilities, developers) to work together to improve water quality in those waters not meeting phosphorus water quality standards.  This option recognizes that the excess phosphorus accumulating in our lakes and rivers comes from a variety of sources, and that reductions in both point and nonpoint sources are frequently needed to achieve water quality goals.  By working in their watershed with landowners, municipalities, and counties to target sources of phosphorus runoff, point sources can minimize their overall investment while helping achieve compliance with water quality-based criteria and improve water quality.”

To be “eligible” to use adaptive management, a permittee must discharge to a water body that is exceeding its in-stream phosphorus criteria on which at least 50% of the total phosphorus loading comes from nonpoint sources, and would have to implement filtration or an equivalent technology to meet the new phosphorus limit.  Unlike water quality trading, which measures compliance with an end-of-pipe effluent limitation, the adaptive management permittee must meet an in-stream concentration of acceptable phosphorus.  Under adaptive management, the phosphorus in the effluent may be reduced over a longer period of time – in some instances, up to several WPDES Permit cycles – as compared to water quality trading which requires the credits to be generated before the permit is issued.  The job of identifying and finding partners falls to the permittee; WDNR does not intend to act as a broker to identify and bring prospective partners together.

An innovative alternative that seeks a watershed approach to control phosphorus, encourages nontraditional partnerships and cooperation between point and nonpoint sources, tries to provide flexibility in timing and doesn’t rely on the traditional and expensive construction of new treatment facilities – how’s it going so far?

For much of industry, forging such partnerships with other regulated and unregulated sources is unfamiliar territory and relying on those other entities to fulfill their commitments when the industrial permittee is the one that must demonstrate compliance is too uncertain to be acceptable.  Many municipalities are more comfortable with partnerships of this sort, but the early experience of one environmentally proactive municipality has demonstrated the enormous amount of time and effort required to take on the role of “champion”, educate and engage other partners in the watershed.  Agricultural interests are initially skeptical – concerned with the potential of taking land out of production.  The environmental advocacy community reaction is mixed.  One ENGO is actively working with the municipality to educate and engage partners and has written a guidance document on how to do adaptive management.  Another ENGO has filed suit against WDNR over WPDES Permits issued with adaptive management compliance schedules in them, reinforcing the reluctance of industrial and municipal permittees to commit to this approach.  And after approving WDNR’s rules in the first instance, EPA now takes such a strict reading of the rules that the intended flexibility may become illusory.

WDNR management is listening to all of this and seeking ways to adjust the implementation of “adaptive management” to respond to these very practical concerns.  No good deed goes unpunished. 

TSCA Reform: The Battle Continues

Posted on February 7, 2013 by Lynn L. Bergeson

For Toxic Substances Control Act (TSCA) aficionados, a new federal legislative session holds the promise of long overdue legislative reform.  Among the oldest environmental laws, it is also the most neglected.  While hope springs eternal, the odds are against reform any time soon.  A deeply divided Congress makes any environmental measure contentious.  Pile on other Congressional priorities, including immigration reform, gun safety, and climate change, and we have the makings of more Congressional inaction and gridlock.

It is against this backdrop that we await introduction of Senator David Vitter’s (R-LA) TSCA reform bill, expected this month.  As the new ranking Republican on the Senate Environment and Public Works Committee, Senator Vitter’s much-awaited bill marks the first Republican alternative to Senator Frank Lautenberg’s (D-NJ) long-standing TSCA reform measure, the Safe Chemicals Act.

Among many contentious issues is the TSCA safety standard.  Senator Lautenberg’s bill contains a “reasonable certainty of no harm” standard to replace the current “unreasonable risk” standard.  This language is found in the 1996 Food Quality Protection Act and defines the applicable standard for pesticide exposures in food.  A key area of controversy is whether such a standard for food safety is appropriate for chemical exposures, or otherwise represents a “zero risk” standard that likely would inspire epic regulatory costs for questionable improvements in true risk reduction.  In the void left by Congressional inaction, state measures are gaining ground.  The California Safer Consumer Products Regulations are expected to be issued in final form sometime this year.  This game-changing approach to assessing the safety of chemicals in consumer products by requiring chemical “alternative” assessments may well become the default safety standard in the absence of federal legislation.

2013 will be a watershed year for domestic chemical management initiatives.  Even if federal inaction continues, a California initiative, like so many others in the past, may prevail and take domestic chemical product safety to places and levels Congress declines to go.

Would You Like Some Unintended Consequences With That Tea?

Posted on February 6, 2013 by Linda Benfield

Wisconsin has a proud tradition of strong political opinions.  Recent Tea-Party backed legislation in Wisconsin limiting the power of government will be interesting to follow as the consequences play out, particularly in the environmental arena. 

In March 2011, Wisconsin’s then-new Republican Governor Scott Walker and the Republican legislature passed the Wisconsin Budget Repair Bill, the state law that famously limits the collective-bargaining rights of public employees. Following that, the legislature passed 2011 Wisconsin Act 21, which includes a “limited government” provision that prohibits any “agency [from] implement[ing] or enforc[ing] any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with [state law].” 

This will play out in a number of ways.  Like other state environmental agencies, the Wisconsin Department of Natural Resources (“WDNR”) relies significantly on guidance documents to implement otherwise complex programs. A number of issues are addressed only in WDNR guidance, not in explicit regulations.  These include sediment cleanup standards; references to “sediment” were intentionally removed from the state soil cleanup standards.  This not only affects state cleanup programs, but also raises issues as to whether the state sediment cleanup standards can be “applicable or relevant and appropriate requirements” under the Comprehensive Environmental Response, Compensation and Liability Act.  Similarly, the WDNR’s vapor intrusion sampling, analysis and remediation protocols are contained only in state and federal guidance documents. 

Recently, the U.S. EPA chose language in a proposed SIP denial that adds fuel to some permitting arguments.  In 2008, U.S. EPA required revisions to State Implementation Plans (“SIPs”) with respect to PM2.5 permitting; Wisconsin made regulatory changes, and requested SIP approval in 2011.  On December 18, 2012, the U.S. EPA proposed disapproval of the SIP revision.  77 Fed. Reg. 74817 (2012).  According to U.S. EPA, Wisconsin’s submission is deficient because the Wisconsin regulations do not “explicitly” define the condensable component of PM10 and PM2.5 emissions, and do not “explicitly” identify SO2 and NOx as precursors to PM2.5.  The U.S. EPA’s disapproval language gives the Wisconsin Department of Natural Resources the usual additional work to propose and finalize regulatory changes to address the deficiency, but it also gives regulated sources an additional argument that the WDNR lacks the authority to regulate condensable particulate matter and PM2.5  precursors.

The Georgia Court of Appeals clarifies the antidegradation rule, at least in Georgia

Posted on February 5, 2013 by Patricia Barmeyer

The Clean Water Act’s antidegradation rule has been a fertile ground for dispute and litigation in Georgia, as elsewhere.  A recent decision by the Georgia Court of Appeals, Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 734 S.E 2d 242 (Ga. App. 2012), has interpreted the Georgia version of the Rule and provided some clarity for POTWs and others seeking NPDES effluent limits. 

Georgia’s Antideg Rule is identical to the federal rule and provides that in the case of a proposed discharge to high quality waters, that quality shall be maintained unless allowing lower water quality is “necessary to accommodate important economic or social development,” and water quality to protect existing uses is assured.

The Rule is not a model of clarity, to say the least, and has been subject to varying interpretations.  EPA has chosen not to provide more specific direction and has, on multiple occasions, reiterated that it is up to the States to decide how to interpret and apply the Antideg Rule, through each State’s implementation procedures.  

Georgia EPD’s implementation procedures interpret the rule to require a determination whether the proposed new or expanded discharge is “necessary to accommodate important economic or social development….”  If it is determined the discharge is “necessary,” that is, that a no-discharge alternative is not economically feasible, then EPD proceeds to consider the application and to impose permit conditions based on the applicable technology-based standards and in-stream water quality standards. 

In contrast, the environmental groups, and an Administrative Law Judge, have taken the position that the Antideg Rule requires EPD to consider whether “allowing the lower water quality resulting from the permitted discharge is actually necessary.”  That reading led the ALJ to conclude that, without regard to cost or benefit, the permit limits for the POTW must be set at the lowest level that is technologically feasible, so long as the permittee can afford it.  As interpreted by the ALJ, the antidegradation analysis would be not just the beginning of the analysis of a proposed new discharge, but also the end point.  According to that view, the antideg analysis would ask, not just whether the discharge is justified, but also, what is the lowest limit that is feasible.  Application of the Antideg Rule in this fashion would short-circuit all considerations of in-stream water quality standards and technology-based limits.  It would eliminate any distinction between POTWs and industrial facilities -- they both would have to meet the lowest limit that is technologically feasible that they can afford.

The Georgia Court of Appeals has now agreed with EPD’s reading of the Antideg Rule.  The  court held the rule requires only a determination whether lower water quality generally is necessary to accommodate economic or social development, not a permit-specific analysis of whether the exact effluent limits in the permit are necessary.  The opponents to the permit have asked the Georgia Supreme Court to take up the issue; a decision on the petition for certiorari is expected by mid-2013.

What the Cluck?! Wastewater Discharge Permits for Air Pollutants?!

Posted on February 1, 2013 by Patricia Finn Braddock

Rose Acre Farms, Inc. et al. vs. NC Department of Environment and Natural Resources, et al., decided January 4, 2013

On January 4, 2013, a North Carolina court held that an egg production facility could be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit solely on the basis that feathers and dust carrying ammonia nitrogen and fecal coliform, expelled from henhouses by ventilation fans, can be “pollutants” from a point source for which an NPDES permit is required if those pollutants reach waters of the State.  This is a case of first impression in which a court held that the impact of air emissions on water bodies could be regulated under the Clean Water Act (CWA).

North Carolina egg producer Rose Acre Farms (RAF) appealed a decision by the NC Department of Water Quality (DWQ) that an NPDES Permit renewal required stringent new BMPs on the grounds that: 1) the DWQ had no authority to require an NPDES permit for a “no discharge” facility; and 2) even if DWQ had authority to require an NPDES permit, the DWQ had no authority to impose new BMPs because: a) the feathers, dust and litter expelled into the air from ventilation fans are not “pollutants” as defined in 33 U.S.C. §1362(6); and b) even if ammonia nitrogen, total inorganic nitrogen, total phosphorus and fecal coliform associated with the feathers, dust and litter are “pollutants” that enter waters of the State, that activity would be exempt under the agricultural storm water discharge exemption in 33 U.S.C. §1362(14).

The Court held that ammonia nitrogen and fecal coliform carried by feathers and dust expelled by ventilation fans in the henhouses are “biological materials”, a term included in the definition of a “pollutant” in the CWA.  In addition, the Court relied on EPA guidance letters to determine that feathers, dust and litter expelled from a henhouse by ventilation fans are discharges from a point source that could reach waters of the State.  Finally, the Court held that the agricultural storm water discharge exemption in 33 U.S.C. §1362(14) applies only to land application in accordance with site specific nutrient management practices and does not apply to pollutants from feathers, manure, litter or dust that are expelled from the RAF henhouses but are not entrained in irrigation water.

If courts in other jurisdictions follow suit, other sources of air emissions with the potential to reach a receiving water, such as power plants and industrial facilities, may be required to address the impacts of their emissions on those receiving waters in future NPDES permits, independent of required air permits.