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.

Cooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0

Posted on September 26, 2017 by Jeffrey Haynes

In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute.  Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017).  The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”

Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply.  The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court.  The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws.  Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind.  The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.

The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state.  The state officers were not contractors, employees, or agents of federal officers.  The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship.  EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute.  The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection. 

The court kept the floodgates closed.  It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.

So, states’ rights advocates, take heart.  Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own.  Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.

Limerickal Recognitions in an Unrecognized Meter

Posted on September 21, 2017 by Andrea Field

Last month, our colleague John Milner was elected to serve as Chair of the ABA’s Section of Environment, Energy, and Resources (SEER).  John’s election follows over 35 years in the practice of environmental law and years of contributions to SEER. 

After congratulating John on his election, I did some research to determine how many of us in the American College of Environmental Lawyers (the College) have also served as Chair of SEER.  Here is what I found. 

 

We all know that John Milner’s a stand-out.

Still, there are more of us (I have no doubt),

Who have chaired SEER and who

Are Collegians, too. 

But how many and who?  Let us find out.

 

Well – mirabile dictu – I now know

There are seventeen such College Fellows – 

Milner; Russell; and Dunn;

And R. Kinnan Golemon;

Also Lynn Bergeson; Richard Stoll-o;

 

Mike Gerard; Eugene Smary; Ken Warren;

Sheila Hollis; and I’m not ignorin’

Steve McKinney; and Lee

DeHihns; Evans (Parthy);

Plus Ted Garrett.  Now let’s keep explorin’.

 

As this leadership onion is unpeeled,

Three additional names are now revealed:

That most worthy of gents –

And our next President –

John C. Cruden; C. Dinkins; and A. Field

 

So when we meet in Charleston, let’s all cheer

The accomplishments of the whole past year.

Clap your hands.  Raise a glass

To Jim Bruen and the class

Of the seventeen Fellows who’ve chaired SEER.

The Intersection of Environmental Justice and Climate Change

Posted on September 20, 2017 by Lisa C. Goodheart

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts.  Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities.  For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks.  Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure.  It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably.  Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes.  Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ.  Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination.  In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts.  That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities.  This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making.  Its scope was limited to environmental agencies, and it contained no mention of climate change.  Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making.  In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.”  This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N.  Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated.  The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making.  The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities.  States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs.  This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster.  As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

PFAS – NOT JUST ANOTHER “EMERGING” CONTAMINANT

Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Turn On, Plug In, Peel Out

Posted on September 18, 2017 by Samuel I. Gutter

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal.  It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S.  And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer. 

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles.  Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers.  Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors.  GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years.  Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.  

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future.  And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years?  Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play.  China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles.  And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up.  And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror. 

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery.  But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share.  As prices drop and driving range increases, electric vehicles will become more affordable and practical.

Fasten your seatbelt, there might be an EV in your future!

Trump’s 2-For-1 Order: Still Arbitrary and Capricious After All These Months

Posted on September 15, 2017 by Seth Jaffe

In June, I posted about Foley Hoag's brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO.  By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated.  The Order is thus the definition of arbitrary and capricious.

Late last week, OMB issued a memorandum to executive agencies, requiring them to develop “Regulatory Cost Allowances” for FY 2018.  The memorandum is only one page.  In that one page, it uses the word “cost” 11 times.  The word “benefit” does not appear.

The memorandum notes that the purpose of the Order is to “lower regulatory burdens” and “to be prudent and financially responsible in the expenditure of funds, from both public and private sources.”

I hate to beat a dead horse, but one would have thought that the absolute size of the “regulatory burden” is not what’s relevant; what’s relevant is whether that regulatory burden is exceeded by the benefits of proposed regulations.  One would also have thought that requiring expenditures of private funds for regulatory compliance would be seen as “prudent” if those compliance costs are exceeded by the benefits.

Indeed, one would have thought – and I do still think – that seeking to lower regulatory compliance costs without regard to the benefits provided by government regulations is just plain crazy.

Silly me.

Countering RCRA Corrective Inaction

Posted on September 14, 2017 by Dean Calland

David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction.

The current statistics on remedial progress at RCRA corrective action sites are disappointing.  EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action.  However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program.

There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach.  RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.”  As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time [of RCRA corrective action cleanups] by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.”  RCRA FIRST was an effort to address the root causes of delay such as unclear or non-specific investigation or cleanup objectives and the lack of specific processes to elevate differences among stakeholders early in the project.  As part of this effort, EPA has published a Toolbox for Corrective Action which is designed to arm both respondents and the agencies with practical recommendations to help achieve more efficient investigation decision-making and remedy selection.

The willingness of EPA regions and delegated states to discuss these approaches varies considerably; however, one of the specific reasons that caused EPA to get serious about corrective action reforms was their recognition that agency manpower is likely to continue to shrink over time, and that the traditional approach was wasteful of agency resources.  Some specific examples of how RCRA FIRST has been used to forge consensus on difficult issues are listed below.

·         Up front establishment of a Corrective Action Framework (CAF) that describes the parties’ understandings regarding future investigation and remediation work at the facility borne out of an on-site meeting with agency site managers and their superiors.  CAF Meeting Agenda; CAF Template. The CAF is not a formal agreement but it can be referenced and attached to the consent order for both parties to build upon during the subsequent work;

·         Willingness to eschew the traditional RFI study at sites with older data sets in favor of a limited scope RFI that solely addresses identified and agreed upon data gaps;

·         Allowance for the respondent to by-pass the RFI Workplan and instead roll the existing characterization data and some limited additional sampling results directly into the RFI Report;

·         In appropriate circumstances, elimination of the Current Conditions Report and Preliminary Conceptual Site Model steps in the process;

·         In certain limited instances, an agreement to skip the obligation to submit a Corrective Measures Study (CMS) altogether, in favor of moving directly to the Statement of Basis, thereby saving considerable time and money. This is more likely to happen when a presumptive remedy is being sought by the Respondent or when there is an identified reuse for the property that will bring new uses and jobs to the site;

·         Agreement to the submission of a limited Corrective Measure Study that only addresses potential corrective measures that are demonstrated, cost-effective or presumptively applicable.

·         Placing pressure on all participants to use quarterly team meetings and pre-discussed decisional criteria for decision-making in place of the extremely time consuming “redo loop” of written comment and response on technical reports and to bring impasses to the attention of decision-makers earlier (the Evaluation Process);

·         Willingness to terminate older consent orders and unilateral orders and consolidate all applicable requirements into one operative corrective action instrument;

·         An agreement that EPA managers coordinate with state agencies where both have ongoing jurisdiction (e.g., when EPA has responsibility for corrective action and the state has responsibility under their UST program) to avoid duplication of effort and cost for the Respondent;

·         A formal acknowledgement by EPA that Respondent may request a written determination that Respondent has met the consent order’s requirements for just a portion of the facility, particularly if necessary or helpful for a sale or innovative reuse of the subject parcel.

In this era of ever-shrinking agency resources, it is incumbent on all stakeholders at RCRA corrective action sites to seriously consider these new techniques that can make the RCRA corrective action process more time efficient and less costly.

Cuba Delegation 2: ACOEL’s Possible Contribution to the Cuban Environmental Community and Other Observations from XI International Convention on Environment & Development (Part 2 of a Two-Part Series)

Posted on September 13, 2017 by Mary Ellen Ternes

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice.  At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience.  It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate.  Also worth noting is that many of the conference participants are familiar to us all.  For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico.  Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain.  Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages.  Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment. 

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey.  This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law.  The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000).  Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters.  They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.