EPA Clears the Way for Regulation of GHG

Posted on April 17, 2009 by Theodore Garrett

The Environmental Protection Agency has formally declared carbon dioxide and five other heat-trapping gases to be pollutants that threaten public health and welfare, setting in motion a process to regulate carbon dioxide and other gases associated with global warming. This announcement comes two years after the Supreme Court's decision in Massachusetts v. EPA. The Agency said the science supporting its so-called endangerment finding was "compelling and overwhelming." The ruling triggers a 60-day comment period before any proposed regulations governing emissions of greenhouse gases are published. Lisa P. Jackson, EPA's Administrator, said: "This finding confirms that greenhouse gas pollution is a serious problem now and for future generations.

Fortunately, it follows President Obama's call for a low-carbon economy and strong leadership in Congress on clean energy and climate legislation." EPA's announcement does not include specific targets for reducing greenhouse gases or new requirements for energy efficiency in vehicles, power plants or industry sources. Such new restrictions would be developed in subsequent rule-making or in legislation enacted by Congress. EPA's announcement stated that "[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy."

A Rant Against Superfund

Posted on April 15, 2009 by Seth Jaffe

As some of my clients know all too well, I’ve been spending a lot of time on some Superfund matters recently. Although I can’t remember a period when I didn’t have at least one moderately active Superfund case, significant immersion in complex remedial decision-making and negotiations provides an unwelcome reminder just how flawed CERCLA is. Almost 20 years after the acid rain provisions of the Clean Air Act ushered in wide-spread acceptance of the use of market mechanisms to achieve environmental protection goals and the state of Massachusetts successfully privatized its state Superfund program, the federal Superfund program, like some obscure former Russian republic which remains devoted to Stalinism, is one of the last bastions of pure command and control regulation.

 

Can anyone tell me why the remedy selection process takes years and costs millions of dollars – before any cleanup has occurred or risk reduction been achieved? Can anyone tell me why, after the remedy has been selected, EPA has to spend millions of dollars – charged back to the PRPs, of course – to oversee the cleanup? Oversight costs can easily exceed 10% of cleanup costs, while oversight during the remedial design and feasibility study process sometimes seem to be barely less than the cost of actually performing the RI/FS.

While there are certainly a multiplicity of causes, there are two factors which greatly contribute to the problem. One was, coincidentally, highlighted in a post today by my friend Rob Stavins. As Rob noted, unlike the acid rain program, which was new at the time, the Superfund bureaucracy is well entrenched and there are a number of actors with a vested interest in maintaining the status quo

The second issue relates to the genesis of the Superfund program, as well as its continuing raison d’être. Whenever EPA has ranked relative risks from different environmental hazards, Superfund sites come in at the bottom. However, if you think back to Superfund’s origins, what comes to mind? Love Canal and the Valley of the Drums – and some concerned near-by residents who rallied around a cause to ensure that the problem would be addressed. As renowned risk communications expert Dr. Peter Sandman has noted, there is not necessarily a significant correlation between actual risk levels and public outrage, and it’s not possible to decrease outrage simply by providing accurate information about risks.

In short, the public is outraged by hazardous waste sites and does not trust PRPs to clean them properly. All of those EPA oversight costs are, in large part, intended not to decrease risk, but to lower outrage.  Outrage is understandable in some circumstances, and efforts to reduce it are laudable, but is it really an appropriate use of scarce environmental protection resources to spend the money that gets poured into Superfund sites?

There has to be a better way. Indeed, there is a better way. It’s called a privatized system in which PRPs have to meet well-defined cleanup standards, but are allowed to do so on their own, in whatever manner is most cost-effective, subject to audits by regulators. Privatized programs such as the one in Massachusetts are not perfect. However, their flaws – which largely stem from a failure to fully support privatization -- pale in comparison to the waste that is the federal program under CERCLA.

In other contexts, I’ve called on the Obama administration to embrace regulatory reform. Why not start with Superfund? Notwithstanding Rob Stavins’ point about the difficulty of overturning an entrenched status quo, if the states could do it, why not the federal government?

Besides, I have an entrenched personal reason for seeking Superfund reform. This stuff drives me nuts.

Clock Ticking on Comments In Response to EPA's Proposed Mandatory GHG Reporting Rule

Posted on April 14, 2009 by Mary Ellen Ternes

 

While we wait for EPA’s GHG Endangerment Assessment and new GHG legislation, the EPA’s proposed mandatory greenhouse gas (GHG) reporting rule was published in the Federal Register, at Mandatory Reporting of Greenhouse Gases, proposed rule, 68 Fed. Reg. 16448 (April 10, 2008)

This proposed rule would require calculation and reporting of carbon dioxide (CO2), methane (CH3), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) in carbon dioxide equivalents by most major industrial and commercial sources of these gases with CO2 equivalent (CO2e) emissions over 25,000 tons per year. 

 

 

The sources covered by the proposed rule range from cement production to food processing, landfills to pulp and paper manufacturing. The rule also specifically requires separate reporting by suppliers of coal and coal-based liquid fuels, petroleum products, natural gas, natural gas liquids and industrial GHGs and manufacturers of vehicles and engines. Compliance with the proposed rule would appear to be challenging for those sources which emit hard to quantify, or never before quantified, fugitive emissions of GHGs. The proposed rule contemplates reporting by approximately 13,000 facilities, with the first annual report due in 2011 for the calendar year 2010.  EPA states that the reporting methods were built upon preexisting voluntary programs such as the U.S. Greenhouse Gas Inventory and The Climate Registry. 

 

There is a second public hearing on the proposed rule on April 16, 2009, at the Sacramento Convention Center, Sacramento, CA. More information is provided here.

Cap and Trade, CO2, and the Economy

Posted on April 14, 2009 by David Tripp

Cap and Trade for air pollution emissions reductions has a proven track record as an effective tool in reducing pollution – but can it work on CO2? Sulfur dioxide (SO2), perceived in the 1980s as the major air pollution threat, was reduced by 10 million tons over a 10-year period starting in 1990, according to EPA, without extensive delays and litigation associated with other environmental campaigns. How did it work so well? The marketplace, backed by the Clean Air Act, was used to create incentives for companies to reduce their SO2 emissions and earn “credits” for each ton of SO2 eliminated. Those credits could then be sold to other companies which needed more time to meet SO2 Clean Air standards.

 

How did the overall reductions occur? Using the implementing authority of Title IV of the Clean Air Act, 42 U.S.C. § 7651, successive “Phase-down” reductions of SO2 emissions were required. Under Phase I, (1995) certain large emitters of SO2 were to reduce the concentration of SO2 in their emissions to 2.5 lbs/mm Btu, or less. Later, in Phase II, (2000), all emitters above 75MW capacity were to reduce SO2 emissions to 1.2 lbs/mmBtu, or less. To help incentivize early compliance, and reduce the economic impact on individual companies, the companies making reductions were issued a credit for each ton of emissions reduction, and could apply the credit to use at another unit owned by the company, keep the credit for future use, or sell the credit through a market established by the Chicago Board of Trade. EPA reports that with these incentives, the national total of SO2 air emissions has been reduced by 50% since 1990.

            Does President Obama want to reduce CO2? You betcha! In August, 2002, then-Senator Obama proposed a reduction of CO2 from 1990 levels by eighty percent, to occur by 2050. The same goals appeared during the Presidential campaign. This is a very ambitious and potentially costly goal. The Congressional Budget Office has estimated a cost of $15 billion to the national economy over 10 years to meet this ambitious goal, but if certain economic safeguards are used, a deficit reduction savings of $80 billion could occur.

            A big change has occurred since then – Obama, as President, has stated Goal Number 1 is to restart the economy. This is a goal shared by nearly all. Congress and the President have begun implementing a stimulus package which would put nearly a trillion dollars into the economy, facing criticism that the debt burden this will place on future investors and generations will frustrate economic recovery. At the same time, Congress and EPA are intent on legislative or administrative action to reduce CO2.

            Can Cap and Trade work to reduce CO2 in a money-constrained economy? Political leaders appear to have concluded that CO2 reductions must be implemented quickly, and Cap and Trade may be the most efficient vehicle, and has been shown to work under the Clean Air Act model for SO2 . A more pointed question is whether Cap and Trade for CO2 should be utilized to generate a tax revenue stream to reduce the national deficit. During his March 24, 2009 news conference, Obama made reference to a budget outline he had sent to Congress earlier, which included hundreds of billions of dollars in revenue to the government through implementation of Cap and Trade. This plan was dubbed a “Cap and Tax” approach to CO2 reduction. In the latest development, in a Senate vote on April 2, 2009, 67 members of the Senate voted to require at least 60 votes to adopt any new cap and tax on carbon energy. These political maneuverings appear to emphasize the momentum by Congress, with public support, to adopt some form of Cap and Trade for CO2 that does not become a hidden tax or result in economic dislocations or hardships on a national or wide-scale regional basis.

            What are the safeguards needed to implement Cap and Trade, but not damage the economy? Most of these have been identified already:

·                    Safety valve provisions. National and regional economic disruptions caused by CO2 reduction requirements should be eligible for relief through any new legislation. Loss of jobs, disruption of the potential for job creation or job preservation and similar hardships should be grounds for flexibility on deadlines and enforcement actions.

·                    Realistic goals should be adopted. President Obama’s earlier proposed eighty percent reduction now may seem more than the country can afford. Congress should adopt more realistic goals, and be prepared in the future to make adjustments if needed.

·                    Research and development for carbon capture and storage must be accelerated. The stalemate over finding and proving technologies to capture CO2, and to safely sequester CO2 should be addressed in setting national priorities, something akin to the World War II stimulus for factories to supply war material.

·                    A “Price-Anderson”-style act for risks associated with carbon storage or sequestration should be adopted. Only when developers, investors and financiers learn they can avoid major, long term liability or loss of equity in the event of an unplanned release of CO2, will the markets be encouraged to get behind carbon capture and sequestration.

            These are not insolvable problems. Realistic goals, flexibility in the design and implementation of a national Cap and Trade system for CO2, and allowing the market to work as it did for SO2 reductions should reduce CO2 significantly without impeding economic recovery.

CLIMATE CHANGE AND THE SITING OF NEW OCEAN ENERGY AND TRANSMISSION PROJECTS: URGENT PROCESS CONCERNS

Posted on April 8, 2009 by Jeff Thaler

Wind energy is a centerpiece of the Obama Administration’s renewable energy resources program, and coastal wind development offers enormous potential yet faces severe challenges. On April 2, 2009 Secretary of the Interior Ken Salazar spoke of major findings from a report he had commissioned from Interior scientists.  Secretary Salazar said, “More than three-fourths of the nation’s electricity demand comes from coastal states and the wind potential off the coast of the lower 48 states actually exceeds our entire U.S. electricity demand.” 

While the National Renewal Energy Laboratory has identified more than 1,000 gigawatts of wind potential off the Atlantic Coast and more than 900 gigawatts of wind potential off the Pacific Coast, the Interior Report finds the Atlantic Coast to have greater feasible potential for wind energy due to its relatively shallow ocean depths and proximity to population centers.  By contrast, the deeper waters of the West Coast are less ideal for wind power, while Alaska’s high wind and shallow waters create an excellent potential power source-- but it sits too far from the lower 48 states’ consumers.

 

However, two major obstacles loom for the major renewable energy goals of Secretary Salazar and President Obama:  insufficient electrical transmission grid capacity to bring the power to market, and “environmental sensitivities” such as visual impact complaints.  Each obstacle presents different issues, yet each obstacle can – and MUST – be swiftly solved.

                With respect to transmission siting issues, there are several battles raging in the Courts and Congress at this time.  On February 18, 2009 the Fourth Circuit of the United States Court of Appeals ruled in the case of Piedmont Environmental Council v. FERC, No. 07-1651, 2009 U.S. App. LEXIS 2944 (4th Cir. Feb. 18, 2009), rejecting arguments by the Federal Energy Regulatory Commission (FERC) that the 2005 Policy Act had permitted FERC to order “National Interest” Transmission Projects to go forward even if State Utility Commissions had not approved those projects.  In this case, the New York and Minnesota Utilities Commissions had denied such projects, but those denials were overruled by FERC.  By a 2-1 decision, the 4th Circuit ruled against FERC. 

However, several weeks later, two leading United States Senators-- Senate Majority Leader Harry Reid (D-Nev.) and Senator Jeff Bingaman (D-N.M.)-- each proposed legislation expanding FERC’s authority over the siting of new transmission lines.  Both Senate bills would require all permit decisions and related environmental reviews under applicable federal laws to be completed “not later than 1 year” from the date FERC deems an application to be complete.  Both bills also would provide FERC with siting authority over new interstate transmission lines; FERC would serve as lead agency to coordinate any federal authorizations and environmental reviews; and state and regional permitting entities would be required to develop “interconnection-wide green transmission plans” to be submitted within 1 year to FERC for approval, or else FERC would complete the plan itself.  State Utility Commissioners have testified against these legislative proposals, not surprisingly.

With respect to the environmental “sensitivities” advocated by opponents to many different on- shore and some off-shore wind project proposals in recent years, the two primary issues have been visual impact and wildlife (including marine mammals for off-shore) impacts.  However, frequently missing from the list is the fundamental overriding environmental concern –global warming or climate change.  Very recent scientific work shows that the Noble-Prize winning Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report issued in 2007 is already out-of-date.  For example, carbon dioxide is being emitted into the atmosphere faster than the IPCC had forecast just two years ago.  Moreover, recent studies find that the Arctic and Antarctic regions are warming faster than previously thought, and further find larger-than-expected pools of carbon in Arctic permafrost, which when released will accelerate levels of greenhouse gases in the atmosphere.  Moreover, since the 2007 IPCC report was issued, unexpectedly rapid melting of the vast Greenland Ice Sheet indicates that sea levels around the world could rise roughly 3 to 6 ½ feet by the end of the Century – almost triple that of the 2007 projections. 

Ocean and terrestrial plant and wildlife habitats already are being damaged by climate change, with the result that many of the birds, mammals, plants, trees and fish which are the subject of concern for some groups opposing wind projects will – in the absence of immediate and rapid facilitation of the siting and construction of clean energy projects – either be driven extinct or forced to move hundreds of miles northward in the United States or into Canada in order to survive during the lifetimes of our children and grandchildren.  Likewise, the environmental “concern” of scenic impact from wind turbines will – again in the absence of rapid facilitation of the siting and development of clean energy projects – be adversely impacted by accelerating climate changes that include greater presence of pests capable of destroying forest species and certain plant life.

                In Maine, an Ocean Energy Task Force has been hard at work over the past five months to meet the Governor’s Executive Order to increase our energy independence and security, reduce our substantial reliance upon fossil fuels, and substantially reduce our greenhouse gas emissions by, in part, developing a strategy to identify and recommend solutions to overcome “potential economic, technical, regulatory, and other obstacles to vigorous and expeditious development of grid-scale wind energy generation facilities in Maine’s coastal waters and adjacent federal waters.”  Tidal and wave power options are also being considered.  Sometime this month the Task Force will preliminarily forward to the Maine Legislature proposed legislation that would create a “General Permit” for off- shore wind energy demonstration projects at certain designated sites along the coast of Maine.

In conclusion, global warming, ocean energy, and our electrical grid system are each critical components to the urgent environmental and economic mandates requiring us to engage in a race, akin the 1960s’ race to the moon, to achieve what previously many may have thought to be unachievable – independence from foreign sources of fuel, independence from use of fossil fuels, and a deceleration of global warmer changes upon our hometowns, states, country and world.

Pres. Obama's DOJ Takes Second Shot at Citizen Suit Dismissal

Posted on April 3, 2009 by Jarred O. Taylor, II

Citizen suits in the environmental world are those filed in federal court under the authority Congress gave to a citizen to seek enforcement of the environmental laws, typically when the citizen believes the regulatory authority (i.e. EPA or a state agency) is not doing its job or has missed a violation.  

 

Entire articles have been written about the efficacy of such suits, and their appropriateness in the face of an already-initiated governmental enforcement or cleanup action. Recent cases suggest the courts want to encourage, and not discourage, such filings, although one recent US Supreme Court decision found the citizens lacked standing because there was not an actual, live, dispute. Summers v. Earth Island Institute, __U.S.__(No. 07-463, March 3, 2009) (see ACOEL blog entry of March 4, 2009).

 

Some, therefore, found it surprising when, on March 6, 2009, President Obama’s Justice Department filed a motion seeking the dismissal of a citizen suit filed against the United States over alleged mining contamination in a national forest. What some found even more surprising was this was not the DOJ’s first shot at the citizen group, the DOJ having attempted to get the case dismissed one time before, under Pres. Bush’s DOJ.

 

In Washington Environmental Council v. Mount Baker-Snoqualmie National Forest (W.D. Wash, CV No. 06-1249), the United States had argued in 2007 that it was already taking action at the site under Superfund, and argued that the citizen suit was a barred challenge to the United States’ “removal or remedial action” under Section 113(h) of Superfund. The federal district court denied this first motion to dismiss on the basis that the US Forest Service was just at the inspection and investigation stage, and had not actually selected a remedy.

 

On March 6, 2009, with the citizen suit still pending, DOJ filed another motion to dismiss, arguing that the US Forest Service had advanced its Superfund work so that all of its inspections were complete and it was beginning to perform the engineering evaluation for remediation, and to calculate those costs. DOJ argued in its motion that such activity, even though before any cleanup had been actually conducted, does meet the Section 113(h) criteria barring such challenges, and that the citizen suit should be dismissed. The author is unaware of a court ruling on this recent motion.

 

One hopes the administration’s position in this case (whether right or wrong) would be the same if the subject of the citizen group’s complaint was a non government organization or other private company, and not the United States. Comments?

Entergy Corp. v. Riverkeeper, Inc.

Posted on April 1, 2009 by Theodore Garrett

The Supreme Court upheld EPA’s decision not to mandate closed-cycle cooling systems, or equivalent reductions, for cooling water intake because the cost of closed-cycle would be nine times the estimated cost of compliance and because other technologies could approach the performance of closed-cycle operation. Entergy Corp. v. Riverkeeper, Inc., ___U.S. __(No. 07-588, April 1, 2009). EPA’s view that "best technology available for minimizing adverse environmental impact" allows consideration of the technology’s costs and of the relationship between those costs and environmental benefits is a reasonable interpretation of the statute, the Court held. When Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language. The court noted that even respondents recognize that some comparison of costs and benefits is permitted.  It remains to be seen whether the impact of the decision will be limited to Section 316 of the Clean Water Act or whether it will be relied on to support the proposition that EPA may consider costs and benefits in other contexts where not expressly precluded by statute.

Clean Water Advocates and Industrial Sector Battle Over Connecticut's Industrial Stormwater Permit

Posted on March 23, 2009 by Gregory Sharp

By Gregory A. Sharp

Murtha Cullina LLP

March 23, 2009

 

The Connecticut Department of Environmental Protection (“DEP”) has proposed to revise and renew its General Permit for the Discharge of Stormwater Associated with Industrial Activity. The renewal has prompted environmental groups to seek enhanced notice and public participation requirements and has provoked the regulated community to seek an overhaul of the structure of the General Permit.

 

The previous General Permit was adopted in 2002, modified in 2003, and expired on September 30, 2007. It was unilaterally extended on October 1, 2007 and October 1, 2008 through March 31, 2008 without change by DEP to provide ongoing coverage to approximately 1,500 registrants. Companies in Connecticut with industrial SIC codes are required to register if they have a discharge of stormwater through a conveyance to waters of the United States, and are not otherwise exempt.

 

Connecticut’s Industrial Stormwater scheme historically was a one-size-fits-all general permit. It allowed eligible companies to authorize their stormwater discharges by filing a registration form, similar to the Notice of Intent in the federal program. The filing of the registration, along with a fee, conferred coverage under the permit, subject to its terms, unless the Commissioner requested an individual permit application.

 

The 2002 permit required the preparation and certification by a P.E. or C.H.H.M. of a stormwater pollution prevention plan (“SWPPP”), adherence to generic best management practices (“BMPs”), annual monitoring of stormwater discharges from qualifying storm events for an expansive list of chemical and physical parameters, including whole effluent toxicity, and a set of Target Values for the parameters based on the 80th percentile of the monitoring data collected in previous years.

 

Historically, the permit had not been particularly controversial, had been relatively easy for DEP to administer, and enabled the agency to develop a significant stormwater data base which it could sort by SIC Code and use to prioritize enforcement. Significant enforcement cases over the past 10 years focused on non-stormwater discharges, such as those from vehicle washing, which commingled with stormwater, or in some cases, discharged directly through stormwater systems.

 

During the summer of 2008, DEP announced that it would be revising the permit. It sought to update its 80th percentile Target Values to reflect the monitoring data acquired since the prior permit was adopted in 2002, and it proposed Action Levels at the 95th percentile of prior monitoring results which would require follow-up action by registrants to investigate the source of the exceedances and modify their BMPs and SWPPPs.

 

Two events conspired to radically change DEP’s approach to the General Permit renewal. On September 27, 2008, the U.S. Environmental Protection Agency (“EPA”) adopted its Multi-Sector General Permit for Stormwater Associated with Industrial Activity (73 FR 56372), and on October 8, 2008, the Connecticut Fund for the Environment and the Connecticut Soundkeeper, Inc. intervened in the DEP proceedings convened to renew the permit, and several industrial stakeholder organizations quickly joined the fray.

 

The environmental groups sought significant changes to the permit scheme arising from federal appellate decisions interpreting the Clean Water Act to require the opportunity for public notice and comment not only on the General Permit and its terms, but also on the individual discharger’s Notice of Intent and its proposed pollution control measures.

 

The leading case relied upon by the environmental intervenors is Environmental Defense Center, Inc. et al. vs. U. S. Environmental Protection Agency et al., 344 F. 3d 832 (9th Cir., 2003). In that case, environmental groups challenged the EPA’s Phase II regulations for municipal storm and sanitary sewers (“MS4s). The regulations authorized the use of general permits and required the use of BMPs identified in an NOI filed by the MS4 in seeking authorization under the general permit. Consistent with its prior practice, EPA did not require NOIs to be subject to public notice or public hearings.

 

The environmental petitioners challenged the rule, because it did not require EPA to review the content of the MS4 dischargers’ Notices of Intent and the substance of the stormwater controls adopted by the dischargers, and it did not contain requirements for public participation in the NPDES permitting process.

 

The Ninth Circuit remanded the rule on both counts. As to the review of the discharger’s individually proposed pollution control measures, the court, relying on Section 402 (p) of the Clean Water Act, 33 U.S.C. § 1342(p), held “stormwater management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable.” Id. at 856.

 

As to the public participation aspects, the court held that, because it was the NOIs and accompanying documents, not the general permit itself, that contain the substantive information on pollution control measures to reduce discharges to the maximum extent practicable, if the Rule does not make NOIs available to the public or provide for public hearings on NOIs, the Rule violates the intent of the Act, as embodied in 33 U.S.C. § 1342 (a)(1) and (j).

 

Using this precedent the environmental groups in Connecticut challenged the DEP’s past practice of not publishing notice of registrations for the Industrial Stormwater Permit and not providing for public review of the site-specific SWPPPs mandated by the General Permit. In the most recent draft of the General Permit, the agency has agreed to publish notice on its website of registrations received each month, and provide a means by which the public can review the SWPPPs.

 

On the industry side, trade associations advocated for a Connecticut General Permit that would emulate the federal Multi-Sector permit. The advantage of the federal approach to industry was that EPA designated 29 industrial sectors and tailored its generic control measures and monitoring requirements to each sector. Although the EPA permit requires quarterly monitoring for sector specific “Benchmark” pollutants, the number of parameters measured is far less than Connecticut’s prior permit and does not include toxicity. The Benchmark concept incorporated in the permit requires those dischargers for which the average of four quarters of monitoring data exceed the Benchmark concentration to investigate the reasons for the exceedance and modify their control measures and SWPPP. For certain sectors, EPA also adopted enforceable effluent limitations.

 

On February 4, 2009, DEP issued a new proposed draft which adopts ten sectors modeled on the federal permit with semi-annual monitoring. The previously proposed “Action Levels” have become “Benchmarks” to track the federal language. DEP’s proposal retains the broad spectrum of parameters to be included in the monitoring program, including toxicity, but makes some sector specific adjustments. The toxicity monitoring requirement carries with it no Benchmark. The draft also adds annual monitoring for parameters for which receiving waters have been designated impaired or subject to Total Maximum Daily Load restrictions.

 

The Benchmark values for Copper, Lead and Zinc are based on Connecticut’s Water Quality Standards. The Benchmarks for remaining parameters (pH, O&G, COD, TSS, TPh, TKN, and NO3), are based on the 50th percentile of the previously acquired monitoring data. Industry has objected to the Benchmarks set at the 50th percentile as arbitrary (not water-quality based), overly stringent, and impossible for many sites to achieve.

 

The DEP is still taking comments, and expects to go to notice on a new proposal in April. In the meantime, the DEP has published notice that it intends to extend the 2002 General Permit once again until September 30, 2010, but it will require re-registration and a pro-rated fee of $300 for the October 1, 2007 to September 10, 2010 time period.

Clean Water Advocates and Industrial Sector Battle Over Connecticut's Industrial Stormwater Permit

Posted on March 23, 2009 by Gregory Sharp

By Gregory A. Sharp

Murtha Cullina LLP

March 23, 2009

 

The Connecticut Department of Environmental Protection (“DEP”) has proposed to revise and renew its General Permit for the Discharge of Stormwater Associated with Industrial Activity. The renewal has prompted environmental groups to seek enhanced notice and public participation requirements and has provoked the regulated community to seek an overhaul of the structure of the General Permit.

 

The previous General Permit was adopted in 2002, modified in 2003, and expired on September 30, 2007. It was unilaterally extended on October 1, 2007 and October 1, 2008 through March 31, 2008 without change by DEP to provide ongoing coverage to approximately 1,500 registrants. Companies in Connecticut with industrial SIC codes are required to register if they have a discharge of stormwater through a conveyance to waters of the United States, and are not otherwise exempt.

 

Connecticut’s Industrial Stormwater scheme historically was a one-size-fits-all general permit. It allowed eligible companies to authorize their stormwater discharges by filing a registration form, similar to the Notice of Intent in the federal program. The filing of the registration, along with a fee, conferred coverage under the permit, subject to its terms, unless the Commissioner requested an individual permit application.

 

The 2002 permit required the preparation and certification by a P.E. or C.H.H.M. of a stormwater pollution prevention plan (“SWPPP”), adherence to generic best management practices (“BMPs”), annual monitoring of stormwater discharges from qualifying storm events for an expansive list of chemical and physical parameters, including whole effluent toxicity, and a set of Target Values for the parameters based on the 80th percentile of the monitoring data collected in previous years.

 

Historically, the permit had not been particularly controversial, had been relatively easy for DEP to administer, and enabled the agency to develop a significant stormwater data base which it could sort by SIC Code and use to prioritize enforcement. Significant enforcement cases over the past 10 years focused on non-stormwater discharges, such as those from vehicle washing, which commingled with stormwater, or in some cases, discharged directly through stormwater systems.

 

During the summer of 2008, DEP announced that it would be revising the permit. It sought to update its 80th percentile Target Values to reflect the monitoring data acquired since the prior permit was adopted in 2002, and it proposed Action Levels at the 95th percentile of prior monitoring results which would require follow-up action by registrants to investigate the source of the exceedances and modify their BMPs and SWPPPs.

 

Two events conspired to radically change DEP’s approach to the General Permit renewal. On September 27, 2008, the U.S. Environmental Protection Agency (“EPA”) adopted its Multi-Sector General Permit for Stormwater Associated with Industrial Activity (73 FR 56372), and on October 8, 2008, the Connecticut Fund for the Environment and the Connecticut Soundkeeper, Inc. intervened in the DEP proceedings convened to renew the permit, and several industrial stakeholder organizations quickly joined the fray.

 

The environmental groups sought significant changes to the permit scheme arising from federal appellate decisions interpreting the Clean Water Act to require the opportunity for public notice and comment not only on the General Permit and its terms, but also on the individual discharger’s Notice of Intent and its proposed pollution control measures.

 

The leading case relied upon by the environmental intervenors is Environmental Defense Center, Inc. et al. vs. U. S. Environmental Protection Agency et al., 344 F. 3d 832 (9th Cir., 2003). In that case, environmental groups challenged the EPA’s Phase II regulations for municipal storm and sanitary sewers (“MS4s). The regulations authorized the use of general permits and required the use of BMPs identified in an NOI filed by the MS4 in seeking authorization under the general permit. Consistent with its prior practice, EPA did not require NOIs to be subject to public notice or public hearings.

 

The environmental petitioners challenged the rule, because it did not require EPA to review the content of the MS4 dischargers’ Notices of Intent and the substance of the stormwater controls adopted by the dischargers, and it did not contain requirements for public participation in the NPDES permitting process.

 

The Ninth Circuit remanded the rule on both counts. As to the review of the discharger’s individually proposed pollution control measures, the court, relying on Section 402 (p) of the Clean Water Act, 33 U.S.C. § 1342(p), held “stormwater management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable.” Id. at 856.

 

As to the public participation aspects, the court held that, because it was the NOIs and accompanying documents, not the general permit itself, that contain the substantive information on pollution control measures to reduce discharges to the maximum extent practicable, if the Rule does not make NOIs available to the public or provide for public hearings on NOIs, the Rule violates the intent of the Act, as embodied in 33 U.S.C. § 1342 (a)(1) and (j).

 

Using this precedent the environmental groups in Connecticut challenged the DEP’s past practice of not publishing notice of registrations for the Industrial Stormwater Permit and not providing for public review of the site-specific SWPPPs mandated by the General Permit. In the most recent draft of the General Permit, the agency has agreed to publish notice on its website of registrations received each month, and provide a means by which the public can review the SWPPPs.

 

On the industry side, trade associations advocated for a Connecticut General Permit that would emulate the federal Multi-Sector permit. The advantage of the federal approach to industry was that EPA designated 29 industrial sectors and tailored its generic control measures and monitoring requirements to each sector. Although the EPA permit requires quarterly monitoring for sector specific “Benchmark” pollutants, the number of parameters measured is far less than Connecticut’s prior permit and does not include toxicity. The Benchmark concept incorporated in the permit requires those dischargers for which the average of four quarters of monitoring data exceed the Benchmark concentration to investigate the reasons for the exceedance and modify their control measures and SWPPP. For certain sectors, EPA also adopted enforceable effluent limitations.

 

On February 4, 2009, DEP issued a new proposed draft which adopts ten sectors modeled on the federal permit with semi-annual monitoring. The previously proposed “Action Levels” have become “Benchmarks” to track the federal language. DEP’s proposal retains the broad spectrum of parameters to be included in the monitoring program, including toxicity, but makes some sector specific adjustments. The toxicity monitoring requirement carries with it no Benchmark. The draft also adds annual monitoring for parameters for which receiving waters have been designated impaired or subject to Total Maximum Daily Load restrictions.

 

The Benchmark values for Copper, Lead and Zinc are based on Connecticut’s Water Quality Standards. The Benchmarks for remaining parameters (pH, O&G, COD, TSS, TPh, TKN, and NO3), are based on the 50th percentile of the previously acquired monitoring data. Industry has objected to the Benchmarks set at the 50th percentile as arbitrary (not water-quality based), overly stringent, and impossible for many sites to achieve.

 

The DEP is still taking comments, and expects to go to notice on a new proposal in April. In the meantime, the DEP has published notice that it intends to extend the 2002 General Permit once again until September 30, 2010, but it will require re-registration and a pro-rated fee of $300 for the October 1, 2007 to September 10, 2010 time period.

Clean Water Advocates and Industrial Sector Battle Over Connecticut's Industrial Stormwater Permit

Posted on March 23, 2009 by Gregory Sharp

By Gregory A. Sharp

Murtha Cullina LLP

March 23, 2009

 

The Connecticut Department of Environmental Protection (“DEP”) has proposed to revise and renew its General Permit for the Discharge of Stormwater Associated with Industrial Activity. The renewal has prompted environmental groups to seek enhanced notice and public participation requirements and has provoked the regulated community to seek an overhaul of the structure of the General Permit.

 

The previous General Permit was adopted in 2002, modified in 2003, and expired on September 30, 2007. It was unilaterally extended on October 1, 2007 and October 1, 2008 through March 31, 2008 without change by DEP to provide ongoing coverage to approximately 1,500 registrants. Companies in Connecticut with industrial SIC codes are required to register if they have a discharge of stormwater through a conveyance to waters of the United States, and are not otherwise exempt.

 

Connecticut’s Industrial Stormwater scheme historically was a one-size-fits-all general permit. It allowed eligible companies to authorize their stormwater discharges by filing a registration form, similar to the Notice of Intent in the federal program. The filing of the registration, along with a fee, conferred coverage under the permit, subject to its terms, unless the Commissioner requested an individual permit application.

 

The 2002 permit required the preparation and certification by a P.E. or C.H.H.M. of a stormwater pollution prevention plan (“SWPPP”), adherence to generic best management practices (“BMPs”), annual monitoring of stormwater discharges from qualifying storm events for an expansive list of chemical and physical parameters, including whole effluent toxicity, and a set of Target Values for the parameters based on the 80th percentile of the monitoring data collected in previous years.

 

Historically, the permit had not been particularly controversial, had been relatively easy for DEP to administer, and enabled the agency to develop a significant stormwater data base which it could sort by SIC Code and use to prioritize enforcement. Significant enforcement cases over the past 10 years focused on non-stormwater discharges, such as those from vehicle washing, which commingled with stormwater, or in some cases, discharged directly through stormwater systems.

 

During the summer of 2008, DEP announced that it would be revising the permit. It sought to update its 80th percentile Target Values to reflect the monitoring data acquired since the prior permit was adopted in 2002, and it proposed Action Levels at the 95th percentile of prior monitoring results which would require follow-up action by registrants to investigate the source of the exceedances and modify their BMPs and SWPPPs.

 

Two events conspired to radically change DEP’s approach to the General Permit renewal. On September 27, 2008, the U.S. Environmental Protection Agency (“EPA”) adopted its Multi-Sector General Permit for Stormwater Associated with Industrial Activity (73 FR 56372), and on October 8, 2008, the Connecticut Fund for the Environment and the Connecticut Soundkeeper, Inc. intervened in the DEP proceedings convened to renew the permit, and several industrial stakeholder organizations quickly joined the fray.

 

The environmental groups sought significant changes to the permit scheme arising from federal appellate decisions interpreting the Clean Water Act to require the opportunity for public notice and comment not only on the General Permit and its terms, but also on the individual discharger’s Notice of Intent and its proposed pollution control measures.

 

The leading case relied upon by the environmental intervenors is Environmental Defense Center, Inc. et al. vs. U. S. Environmental Protection Agency et al., 344 F. 3d 832 (9th Cir., 2003). In that case, environmental groups challenged the EPA’s Phase II regulations for municipal storm and sanitary sewers (“MS4s). The regulations authorized the use of general permits and required the use of BMPs identified in an NOI filed by the MS4 in seeking authorization under the general permit. Consistent with its prior practice, EPA did not require NOIs to be subject to public notice or public hearings.

 

The environmental petitioners challenged the rule, because it did not require EPA to review the content of the MS4 dischargers’ Notices of Intent and the substance of the stormwater controls adopted by the dischargers, and it did not contain requirements for public participation in the NPDES permitting process.

 

The Ninth Circuit remanded the rule on both counts. As to the review of the discharger’s individually proposed pollution control measures, the court, relying on Section 402 (p) of the Clean Water Act, 33 U.S.C. § 1342(p), held “stormwater management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable.” Id. at 856.

 

As to the public participation aspects, the court held that, because it was the NOIs and accompanying documents, not the general permit itself, that contain the substantive information on pollution control measures to reduce discharges to the maximum extent practicable, if the Rule does not make NOIs available to the public or provide for public hearings on NOIs, the Rule violates the intent of the Act, as embodied in 33 U.S.C. § 1342 (a)(1) and (j).

 

Using this precedent the environmental groups in Connecticut challenged the DEP’s past practice of not publishing notice of registrations for the Industrial Stormwater Permit and not providing for public review of the site-specific SWPPPs mandated by the General Permit. In the most recent draft of the General Permit, the agency has agreed to publish notice on its website of registrations received each month, and provide a means by which the public can review the SWPPPs.

 

On the industry side, trade associations advocated for a Connecticut General Permit that would emulate the federal Multi-Sector permit. The advantage of the federal approach to industry was that EPA designated 29 industrial sectors and tailored its generic control measures and monitoring requirements to each sector. Although the EPA permit requires quarterly monitoring for sector specific “Benchmark” pollutants, the number of parameters measured is far less than Connecticut’s prior permit and does not include toxicity. The Benchmark concept incorporated in the permit requires those dischargers for which the average of four quarters of monitoring data exceed the Benchmark concentration to investigate the reasons for the exceedance and modify their control measures and SWPPP. For certain sectors, EPA also adopted enforceable effluent limitations.

 

On February 4, 2009, DEP issued a new proposed draft which adopts ten sectors modeled on the federal permit with semi-annual monitoring. The previously proposed “Action Levels” have become “Benchmarks” to track the federal language. DEP’s proposal retains the broad spectrum of parameters to be included in the monitoring program, including toxicity, but makes some sector specific adjustments. The toxicity monitoring requirement carries with it no Benchmark. The draft also adds annual monitoring for parameters for which receiving waters have been designated impaired or subject to Total Maximum Daily Load restrictions.

 

The Benchmark values for Copper, Lead and Zinc are based on Connecticut’s Water Quality Standards. The Benchmarks for remaining parameters (pH, O&G, COD, TSS, TPh, TKN, and NO3), are based on the 50th percentile of the previously acquired monitoring data. Industry has objected to the Benchmarks set at the 50th percentile as arbitrary (not water-quality based), overly stringent, and impossible for many sites to achieve.

 

The DEP is still taking comments, and expects to go to notice on a new proposal in April. In the meantime, the DEP has published notice that it intends to extend the 2002 General Permit once again until September 30, 2010, but it will require re-registration and a pro-rated fee of $300 for the October 1, 2007 to September 10, 2010 time period.

New Requirements for Siting and Permitting in Connecticut

Posted on March 13, 2009 by Earl Phillips

As of January 1, 2009, a party seeking to develop or expand certain facilities in Connecticut that require approval by the state Siting Council or the Department of Environmental Protection (DEP) must comply with significantly expanded public participation requirements before applying for or receiving approval from the Siting Council or DEP.

The new requirements arise from Public Act 08-94, An Act Concerning Environmental Justice Communities and the Storage of Asbestos-Containing Material (the "Act"), enacted in May 2008.  The Act applies to certain proposed new or expanded facilities — including but not limited to a "major source" of air pollution under the federal Clean Air Act, certain electric generating facilities with a capacity of more than 10 megawatts, a sewage treatment plant with a capacity of more than 50 million gallons/day, and certain types of waste management facilities — that are located in an "environmental justice community."  An "environmental justice community" is defined as either a U.S. census block group for which 30 percent or more of the population consists of low-income persons (income below 200 percent of the federal poverty level), or a Connecticut "distressed municipality," as defined by other state statutes relating to economic development.

 

In general, the Act requires a subject party to take three main steps:

  1. Before filing an application for a "new or expanded" permit with DEP or an application for a Certificate of Environmental Compatibility and Public Need with the Siting Council, the party must now file and receive approval of a "meaningful public participation plan" from DEP or the Siting Council.  "Meaningful public participation" means that community residents and other potentially affected persons are sought out and provided an opportunity to participate in and influence the regulatory agency's decision.  The "meaningful public participation plan" must include an informal public meeting to be held for community residents. The plan must also contain measures to facilitate public participation.  The Act specifies in great detail measures that may or must be taken, including sign posting, newspaper ads, Web page notices, and written notification to neighborhood and environmental groups and to local and state elected officials.
  2. The party must hold an informal public meeting and offer "clear, accurate and complete" information about the proposed facility or facility expansion and its potential environmental and health impacts.  The DEP or the Siting Council may not take any action on the party's permit, certificate, or approval earlier than 60 days after the informal public meeting.
  3. The party must also consult with the chief elected official(s) of the town(s) in which the facility is to be located to evaluate the need for a "community environmental benefits agreement," which is defined as a written agreement by which the property owner or developer commits to the municipality to provide "financial resources" to mitigate, in whole or in part, "impacts reasonably related to the facility, including, but not limited to, impacts on the environment, traffic, parking and noise."  The municipality must provide community residents an opportunity to be heard concerning the need for and terms of such an agreement.

Where a facility must comply with the Act for both Siting Council and DEP approvals, the Act allows DEP to waive the requirement for an additional informal public meeting if one has already been held for purposes of the Siting Council approval.

DEP estimates that some or all of about 69 municipalities in the state qualify as an "environmental justice community."  DEP is now working with the Department of Economics and Community Development (DECD) to identify these areas more specifically.  DEP has also drafted template and guidance documents and will discuss these at a public workshop on Tuesday, January 13, 2009, 10:00 to 12:00 noon at DEP offices in Hartford.

In summary, the Act has the potential to alter significantly the timing, cost, and outcome of DEP and Siting Council applications for affected facilities.

Robinson & Cole is currently advising a number of clients regarding the Act and its potential impacts on facility development in Connecticut.  We stand ready to apply our experience and insights to your operations and strategic planning.  If you would like to discuss these issues and how they may impact your business, or if you would like a copy of the draft DEP implementation documents, please contact any of the following attorneys in our Environmental and Utilities Practice Group:

Earl Phillips, (860) 275-8220, ephillips@rc.com  
Ken Baldwin, (860) 275-8345, kbaldwin@rc.com
Brian Freeman, (860) 275-8310, bfreeman@rc.com
Pamela Elkow, (203) 462-7548, pelkow@rc.com

Another RICE Crop: EPA Proposes Additional Rules for Stationary Reciprocating

Posted on March 13, 2009 by Earl Phillips

On February 25, 2009, EPA proposed a new set of rules and rule revisions applicable to a broad universe of existing stationary reciprocating internal combustion engines (RICE). These engines are typically used for a variety of purposes at commercial and industrial facilities, such as providing back-up electricity and powering fire pumps. The proposed rule for existing engines would supplement (and in certain instances, modify) the 2004 and 2008 rules for new engines. Collectively, these rules address "hazardous air pollutants" (HAPs) and are formally known as the RICE National Emission Standards for Hazardous Air Pollutants (NESHAPs).

 

Like the 2004 and 2008 rules, the proposed rules are dense and complex. They would apply to engines in three basic categories of stationary RICE: 

  • Existing smaller (<500 horsepower) engines at "major sources" of HAPs (i.e., facilities with potential emissions of at least 10 tons/year of an individual HAP or 25 tons/year of any combination of HAPs)
  • Certain new or reconstructed engines at "major sources"
  • Existing engines at "area sources" (i.e., non-major sources)

The definition of "existing" and "new or reconstructed" varies depending on such factors as the design type, power rating, fuel type, and usage of a particular engine. Similarly, such factors also would determine whether and how the engine would be subject to various proposed numeric emission limits or other requirements regarding fuels, emission controls, periodic emission testing, operating and maintenance practices, and associated recordkeeping and reporting.

Notably, EPA is proposing that RICE sources would not have the benefit of the "startup, shutdown, and malfunction" exemption that traditionally has been part of numerous NESHAP regulations, including the existing RICE NESHAP. (The legal status of this exemption is currently uncertain, following a December 2008 court ruling that struck it down.) However, EPA is also "co-proposing" an alternative limited exemption for certain engines that use catalytic controls: such engines would be subject to more relaxed emission limits during startup and malfunction, but not shutdown.

Public comments on this proposed rule must be received on or before the later of May 4, 2009, or 30 days after EPA holds a public hearing on the proposal.

The scope and complexity of the proposed rules present significant challenges in determining if and how the rules would apply to any individual engine. From our experience in counseling clients regarding the 2004 and 2008 rules, we stand ready to assist with the regulatory analysis, or with preparing public comments to EPA about the proposed rules and revisions. If you would like to discuss the proposed rules, please contact any of these attorneys in our Environmental and Utilities Practice Group:

Earl W. Phillips, Jr.
ephillips@rc.com
(860) 275-8220 

Christopher Foster
cfoster@rc.com
(617) 557-5908

Brian C. Freeman
bfreeman@rc.com
(860) 275-8310

Kirstin M. Etela
ketela@rc.com
(203) 462-7534

EPA CAFO RULE - RIGHTING ITS COURSE??

Posted on March 12, 2009 by Brian Rosenthal

Has the EPA gone far enough to overcome the successful Waterkeeper Alliance challenge to its CAFO Rule? 

 

In 2005, the 2nd Circuit Court of Appeals held EPA’s 2003 CAFO Rule exceeded its authority. The challenged rule required certain concentrated animal feeding operators to apply for an NPDES water permit or prove none was needed. The court held that having only a potential to discharge was not enough to require a permit. In 2008, the EPA revised its CAFO Rule, announced on November 20, 2008 at 73 Fed. Reg. 70,418 as “Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision”-did it do enough to survive a challenge?

 

Now, only parties that discharge or propose to discharge must apply for an NPDES permit. In addition, a voluntary option is included for unpermitted CAFO’s to self certify that they do not meet the permitting standard. Agricultural stormwater continues to be exempt if litter is applied in compliance with a nutrient management plan. The states are just beginning to address how to implement the CAFO Rule.   

 

One head’s up is, a CAFO that proposes to discharge must apply for a permit as soon as it proposes to discharge. If it does not, it could have an unpermitted discharge and also be in violation of another requirement to seek permit coverage at the proposal date.  In other words, an unpermitted discharge could result in two violations. 

 

A proposal to discharge is based on either design, construction, operation or maintenance such that a discharge will occur. The certification procedure is now self-implementing with a certification statement being submitted by the farmer or operator. It is not subject to public comment or agency review. Obtaining a no discharge certification shifts the burden of proof to the agency on whether a proposal to discharge that should have been permitted occurred. In other words, if a party does not properly certify and has a discharge, it has the burden of proving that it did not propose to discharge in any enforcement action, which could lead to a double violation along with the unpermitted discharge. 

 

The EPA as part of the CAFO Rule has committed to work with the states and various states have begun sessions regarding the CAFO Rule and their state programs. Farmers and operators, however, fear unintended recordkeeping violations and EPA inspections upon registration.  Of course, to the extent they fall within the Rule, farmers or operators must apply.

Stay tuned for additional implementation issues and enforceability questions as the CAFO Rule becomes subjected to further scrutiny, in the consolidated challenge to it pending in the Fifth Circuit Court of Appeals.

Native American Water Rights in Oklahoma

Posted on March 9, 2009 by Linda C. Martin

The ownership of the Illinois River and its watershed in Oklahoma is currently at issue in Federal Court in the Northern District of Oklahoma in a case brought against the poultry industry. State of Oklahoma v. Tyson Foods, inc., et al., Case No. 05-CV-329-GFK (PJC). 

In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the disposal of  poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA and nuisance, among other things. The poultry companies assert that the State has no standing to sue because, in this geographic area, under applicable treaties the natural resources (including the water in the Illinois River) are owned exclusively by the Cherokee Nation and not the State of Oklahoma. The defendants’ argument relies heavily on Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), which held that under various treaties, the Cherokee, Choctaw and Chickasaw Nations own fee title to the land, minerals, sand and gravel in and under the bed of the Arkansas River in Eastern Oklahoma. 

 

The Attorney General asserts that the State of Oklahoma is the exclusive owner of the stream water, not the Cherokee Nation, and relies on the laws and authorities which prescribe the rights and privileges of a new state. The State also claims under other cited authorities that even if it does not hold exclusive ownership of the water in the Illinois River, neither does the Cherokee Nation. The Cherokee Nation is not a party and has not filed a motion to intervene in the case.

 

Because of treaty similarities, a decision on this issue by the Tulsa Federal Court could well determine the ownership rights of all the Five Civilized Tribes, not just the Cherokees, as to water in any stream or river within or abutting the boundaries of the lands included within their original treaty grants. Thus, it could affect the ownership of stream water in approximately half of the State of Oklahoma. It could further have a significant impact on both development of the Oklahoma Comprehensive Water Plan now in progress, and the issue of who has the right to sell water to both in‑state and out‑of‑state purchasers (i.e., Texas).

Priscilla Summers v. Earth Island Institute Supreme Court Decision

Posted on March 4, 2009 by Theodore Garrett

In a 5-4 decision, the Supreme Court held that environmentalists' lacked standing to challenge a Forest Service regulation limiting public involvement in timber sales decisions. Priscilla Summers v. Earth Island Institute, et al.,__U.S.__(No. 07-463, March 3, 2009). The decision found that respondents’ argument that they have standing because they suffered procedural injuryi.e., they have been denied the ability to file comments on some Forest Service actionsfails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. Justice Scalia, writing for the majority, stated "Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact."  The following is a link to the Court's opinion: http://www.supremecourtus.gov/opinions/08pdf/07-463.pdf

PENNSYLVANIA CLEAN WATER AND BROWNFIELDS INVESTMENT OF STIMULUS FUNDS

Posted on February 27, 2009 by Joseph Manko

Among the priorities under the $787.5 billion American Recovery and Reinvestment Act of 2009 is repairing, rebuilding, and constructing the nation’s water infrastructure. Approximately $6 billion will augment the EPA’s clean water and drinking water state revolving funds, of which approximately $221 million will be disbursed to the Commonwealth of Pennsylvania’s Infrastructure Investment Authority (PennVest). The governing board of PennVest is appointed by Governor Rendell, and I have been serving as its chair for the past six years.

 

PennVest administers the approximately $300 million annual allotment of Clean Water and Drinking Water funds previously supplied by EPA on a matching basis with Pennsylvania. These funds will now be augmented by the $212 million in stimulus funds. The Clean Water Fund addresses waste water infrastructure. The fund also addresses brownfields (with its protection of water quality) and storm water, whereas the Drinking Water Fund is strictly for water supply and distribution. At least 50 percent of the funding must be in the form of grants.

 

With the current emphasis on sustainability, alternative energy, greenhouse gas emission reduction and the need for more stringent control over stormwater run-off, the allocation of stimulus funds by PennVest will focus on innovative green technology, including particularly, controlling stormwater and remediating brownfields (at least 20 percent of the stimulus funding must be used for “green infrastructure”.)

 

Although the final disbursement of the economic stimulus funding will be affected by various regulations, the awarding of grants and loans will likely be on the same timetable as in the past with an emphasis on “shovel ready” projects. Funding agreements must be entered into and contracts for the full amount signed within a year.  The ultimate goal is to immediately increase the amount of jobs needed to construct the infrastructural repair, rebuilding and construction. 

PENNSYLVANIA CLEAN WATER AND BROWNFIELDS INVESTMENT OF STIMULUS FUNDS

Posted on February 27, 2009 by Joseph Manko

Among the priorities under the $787.5 billion American Recovery and Reinvestment Act of 2009 is repairing, rebuilding, and constructing the nation’s water infrastructure. Approximately $6 billion will augment the EPA’s clean water and drinking water state revolving funds, of which approximately $221 million will be disbursed to the Commonwealth of Pennsylvania’s Infrastructure Investment Authority (PennVest). The governing board of PennVest is appointed by Governor Rendell, and I have been serving as its chair for the past six years.

 

PennVest administers the approximately $300 million annual allotment of Clean Water and Drinking Water funds previously supplied by EPA on a matching basis with Pennsylvania. These funds will now be augmented by the $212 million in stimulus funds. The Clean Water Fund addresses waste water infrastructure. The fund also addresses brownfields (with its protection of water quality) and storm water, whereas the Drinking Water Fund is strictly for water supply and distribution. At least 50 percent of the funding must be in the form of grants.

 

With the current emphasis on sustainability, alternative energy, greenhouse gas emission reduction and the need for more stringent control over stormwater run-off, the allocation of stimulus funds by PennVest will focus on innovative green technology, including particularly, controlling stormwater and remediating brownfields (at least 20 percent of the stimulus funding must be used for “green infrastructure”.)

 

Although the final disbursement of the economic stimulus funding will be affected by various regulations, the awarding of grants and loans will likely be on the same timetable as in the past with an emphasis on “shovel ready” projects. Funding agreements must be entered into and contracts for the full amount signed within a year.  The ultimate goal is to immediately increase the amount of jobs needed to construct the infrastructural repair, rebuilding and construction. 

Another Loss For the Bush EPA; The D.C. Court of Appeals Remands the Fine Particulate Standard

Posted on February 27, 2009 by Seth Jaffe

The batting average of the Bush administration EPA in appeals of its regulatory proposals may now have dropped below the proverbial Mendoza line. This week, the Court of Appeals for the District of Columbia remanded a substantial part of EPA’s particulate rule. That the Bush administration could achieve results where the Mendoza line is even a close metaphor is a testament to just how low its stock has fallen in the courts.

 

The case itself is important for a number of reasons, but is too lengthy for detailed analysis here. Highlights include:

·                     First, the basic holding: the court remanded EPA’s primary annual standard for PM2.5, because EPA did not justify that the 15 ug/m3 standard was sufficient to protect public health with an adequate margin of safety. Second, the court also remanded EPA’s determination of the secondary, public welfare, standard for PM2.5.

·                     The court gave great weight to the role of the Clean Air Science Advisory Committee (CASAC) and staff recommendations in the regulatory process. After this decision, EPA is going to think twice about choosing a regulatory course difference than that recommended by CASAC and staff. On balance, I think that this is a bad thing and more evidence of the collateral damage from the extreme positions taken by the Bush administration. After all, while the Clean Air Act sets some boundaries, these are ultimately policy decisions that should be made by the President and his or her chosen staff, not by a committee no one’s heard of or low-level staff.

·                     Unlike the chaos created when the court vacated the CAIR regulations, the court appears to have learned its lesson. This time around, the court remanded the rule, but left the standard in place for now.

·                     The court’s decision to remand the public welfare standard will have implications for current efforts to implement the its Regional Haze Rule. The extent to which this decision throws Haze Rule implementation back to the drawing board may not be known for some time.

How many more cases can the Bush administration lose after it’s already out of office? At least one. Greenwire reports today about speculation that this decision means that the EPA rules regarding the nitrogen oxide NAAQS may also be in trouble.

The interesting question in all this is the extent to which the abysmal record of the Bush EPA in defending its decisions in the courts will damage EPA’s credibility and thus result in a long-term weakening of the deference given EPA by the courts. At this point, my assumption is that, in the long run, these cases will be seen as an aberration and courts will resume their prior practice of granting EPA substantial deference. Of course, whether that is a good thing or not is a separate question.

Another Loss For the Bush EPA; The D.C. Court of Appeals Remands the Fine Particulate Standard

Posted on February 27, 2009 by Seth Jaffe

The batting average of the Bush administration EPA in appeals of its regulatory proposals may now have dropped below the proverbial Mendoza line. This week, the Court of Appeals for the District of Columbia remanded a substantial part of EPA’s particulate rule. That the Bush administration could achieve results where the Mendoza line is even a close metaphor is a testament to just how low its stock has fallen in the courts.

 

The case itself is important for a number of reasons, but is too lengthy for detailed analysis here. Highlights include:

·                     First, the basic holding: the court remanded EPA’s primary annual standard for PM2.5, because EPA did not justify that the 15 ug/m3 standard was sufficient to protect public health with an adequate margin of safety. Second, the court also remanded EPA’s determination of the secondary, public welfare, standard for PM2.5.

·                     The court gave great weight to the role of the Clean Air Science Advisory Committee (CASAC) and staff recommendations in the regulatory process. After this decision, EPA is going to think twice about choosing a regulatory course difference than that recommended by CASAC and staff. On balance, I think that this is a bad thing and more evidence of the collateral damage from the extreme positions taken by the Bush administration. After all, while the Clean Air Act sets some boundaries, these are ultimately policy decisions that should be made by the President and his or her chosen staff, not by a committee no one’s heard of or low-level staff.

·                     Unlike the chaos created when the court vacated the CAIR regulations, the court appears to have learned its lesson. This time around, the court remanded the rule, but left the standard in place for now.

·                     The court’s decision to remand the public welfare standard will have implications for current efforts to implement the its Regional Haze Rule. The extent to which this decision throws Haze Rule implementation back to the drawing board may not be known for some time.

How many more cases can the Bush administration lose after it’s already out of office? At least one. Greenwire reports today about speculation that this decision means that the EPA rules regarding the nitrogen oxide NAAQS may also be in trouble.

The interesting question in all this is the extent to which the abysmal record of the Bush EPA in defending its decisions in the courts will damage EPA’s credibility and thus result in a long-term weakening of the deference given EPA by the courts. At this point, my assumption is that, in the long run, these cases will be seen as an aberration and courts will resume their prior practice of granting EPA substantial deference. Of course, whether that is a good thing or not is a separate question.

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.  

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.  

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.  

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.  

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.  

Section 115 of the Clean Air Act - A Useful Tool for Climate Change?

Posted on February 25, 2009 by Angus Macbeth

We are not going to have Congressional action on a regime for reducing greenhouse gas emissions by the time EPA will feel compelled to respond to the Supreme Court's direction in the Massachusetts case and announce whether CO2 emissions endanger public health or welfare. If endangerment is found under Section 109 or 202 of the Act, it appears to lead to ambient air quality standards for CO2 which are then to be met through state implementation plans. By controlling the sources of CO2 within its borders, no state is likely to be able to reduce CO2 to whatever ambient level is established. This is the practical result of the fact that greenhouse gases are a global problem not a local or regional problem. Moreover, the regulation of CO2 under other portions of the Act will likely follow. Perhaps the chaos likely to ensue from following this course will push Congress to pass legislation addressing greenhouse gases. But relying on Congress to do the sensible thing may well be an imprudent course.

 

Why not try an endangerment finding under Section 115 of the Act instead? It addresses international air pollution which is what GHG emissions are. It calls for a determination of endangerment in a foreign country from sources in the United States. The determination is deemed a finding under Sec.110(a)(2)(H)(ii) of the Act; that finding may be that the relevant SIP is substantially inadequate to comply with the requirements of the Act but need not be that it is inadequate to attain the NAAQS. The affected foreign country must be invited to appear at public hearings on appropriate revision of the SIP and the United States must be given reciprocal rights by the foreign country. Making the determination and establishing reciprocity would take EPA into comparatively unfamiliar territory; starting GHG reduction through state action would follow the path that the US has already started down.

The advantages of this approach that I see are, first, that it deals with the GHG issue as a global, or at least an international, problem rather than as a local or regional one. Second, it gives the states the opportunity to proceed with cap-and-trade regimes which I think will, in some form, be the Congressional solution. Third, it may be able to avoid introducing GHG regulation into other CAA programs such as New Source Review which may be hard to untangle if and when a cap-and-trade regime is established.

The disadvantages are that it is certainly not a perfect fit with a national cap-and-trade or GHG emission tax scheme which I view as the most rational approaches that Congress might enact (though the rationality of a tax scheme is much greater than the likelihood that Congress would embrace it). If you favor command and control regulation and the complexity of New Source Review, this is not the solution for you. There are also risks in what the courts may do in interpreting Section 115 which has rarely been subjected to judicial scrutiny.

In sum, I suggest Section 115 as the best of the ill-fitting options which the Clean Air Act offers for a rational approach to reducing GHG emissions.