If You Need the Money I’ve Got the Fine

Posted on October 3, 2019 by Kevin Finto

With apologies to Lefty Frizell, that is a terrible suggestion on how to fund environmental programs.  But, we need to figure something out.  As environmental lawyers, we spend a lot of effort discussing the substantive and procedure aspects of the statues and regulations that protect the environment, but little time on the appropriations bills that make them work.  We are all familiar with environmental regulations that have wide-scope, strict requirements, but inadequate funding for their implementation.  This deficiency results in the unintended consequences of providing a false sense of protection to the public and frustration to the regulated community. 

The problem is becoming more acute as political-based belt-tightening on environmental issues continues at the Federal level and directly affects budgets of the state environmental agencies, where most of the implementation occurs.  The Environmental Council of the States (“ECOS”) reported in 2017 that federal funding of state government programs declined by 2.5 percent between 2013 and 2015.  While some states were able to meet the short fall, many states, faced with ever-increasing demands for education, security and social welfare are not keeping up with environmental funding as their economies grow out of the great recession.  For FY 2020, EPA proposed a budget decrease of 31 percent.  Where this ends up is yet to be seen.  On September 26, ECOS sent a letter to EPA Administrator Wheeler, which did not expressly identify budget issues, but demanded a meeting to discuss “serious[] concern[s] about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.”

So what do we do?  I think three steps might be helpful.  First, there needs to be greater focus and participation on the budgetary process to evaluate the need, priority and allocation of available resources rather than simply updating a prior year’s budget.  I am suggesting reevaluation from the bottom up of many agency budgets by the regulators, lawmakers, the regulated community and environmental non-governmental organizations.  Of  particular concern is how agencies can meet basic long-existing requirements such as monitoring environmental quality and training of personnel while dealing with expenses of new requirements related to communicating through social media, data storage and cyber security.  The second is to evaluate the efficiency with which the agencies operate and to share best practices.  As documented by ECOS, in many instances, state agencies, in particular, have become increasingly efficient as they have had their budgets repeatedly slashed and cuts have been necessary in order to provide the essential services.  Third, there needs to be advocacy in Congress and our state legislatures, from relevant stakeholders –government agencies, the regulated community, and environmental non-governmental organizations. 

In some states, the latter has already occurred.  A good example is VIRGINIAforever, a unique, diverse coalition of businesses, environmental organizations, and outdoor enthusiasts that advocates for increased government funding for water quality improvements, land conservation and improved agency performance and funding across the Commonwealth.  It is the only statewide organization that has a primary focus on increasing funding for natural resources protection.  This has taken the form of collaborative and very active lobbying for adequate funds in the Virginia General Assembly to promote land conservation and water quality.

VIRGINIAforever representatives meet regularly with agency heads to discuss budgets.  It promotes activities to educate lawmakers on the importance of environmental protection and it lobbies for adequate funding.  It is in the process of releasing its latest five-year plan to obtain those resources.  The group also recognizes those who promote its goals.  For example, each year it holds a Bridge Builder dinner honoring those who work with both environmental groups, government agencies and the business community to promote land conservation and water quality.  By design, VIRGINIAforever also provides a forum for fostering relationships among those with diverse perspectives on environmental issues. In sum, if we want to promote sound and efficient environmental programs, we need to think not only about the substance and the procedure, but also identify and advocate for the sources of adequate funding.

NSR Regulatory Reform—the saga continues

Posted on September 18, 2019 by William Brownell

In 2002, EPA promulgated a Clean Air Act new source review (NSR) “reform rule” to clarify the confusion created by inconsistent guidance and judicial decisions on NSR applicability.  That clarification effort had only limited success, as inconsistent interpretations of the NSR applicability rules continued to emerge as those rules were applied by state regulators and courts.  In perhaps the most extreme example of regulatory confusion, a three judge panel of the Sixth Circuit issued five opinions with three different interpretation of the same regulatory language.  DTE I, http://www.opn.ca6.uscourts.gov/opinions.pdf/13a0080p-06.pdf.  DTE II, http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0006p-06.pdf.

The Trump Administration has embarked on a new clarification effort.  In what EPA’s Office of Air and Radiation dubbed a “singles and doubles” approach, EPA issued guidance and undertook rulemaking on key applicability issues, including emissions projections, emissions accounting, and project aggregation.  In conjunction with the Affordable Clean Energy rule, EPA then proposed a more fundamental change to the NSR applicability rules under which a project would trigger NSR only if it resulted in both an hourly and annual emissions increase.

That EPA is still struggling with clarification of its NSR rules two decades after it began a series of significant NSR enforcement initiatives illustrates how controversial this program has been and continues to be.  From an environmental standpoint, however, the NSR program has become less significant. Industrial sources are largely well-controlled for a variety of reasons other than NSR.  And in the electric utility sector, the steep drop in the price of natural gas has resulted in current or planned retirement of many coal-fired generating units.  As a result, there is little to be gained from injunctive relief even in a successful NSR enforcement action.

All of this says that there should be wide-spread support for EPA completing its NSR clarification efforts.  Regulated entities have every incentive to comply with NSR.  From the regulators standpoint, the limitations the Supreme Court put on regulatory re-interpretation in Kisor v. Wilkie, should create its own incentives for regulatory clarity.

Did a Bureaucratic Fog Envelop the Flint Water Crisis?

Posted on April 23, 2019 by Ronald R. Janke

The Flint water crisis began in April 2014 when the City of Flint switched its source of drinking water from Lake Huron to the Flint River without installing corrosion control treatment to protect against lead and other chemicals leaching from pipes into tap water.  The need for corrective action was elevated on September 24, 2015, when a Flint pediatrician, Dr. Mona Hanna-Attisha, released her finding that the number of young children with elevated blood lead levels had increased 90 percent after the Flint’s water supply was switched.  In her book, What the Eyes Don’t See (2018), Dr. Hanna-Attisha plaintively and repeatedly asks why the regulators didn’t do something earlier to protect the children, noting “It was their job.” 

The US EPA’s Office of Inspector General (“OIG”) addressed Dr. Hanna-Attisha’s question in two reports released in 2016 and 2018.  The 2016 report concludes that by June 2015 “EPA Region V had sufficient information and authority to issue an Emergency Order but did not.”  The Region V Administrator did issue an Emergency Administrative Order under the Safe Drinking Water Act to the State of Michigan, the Michigan Department of Environmental Quality (MDEQ) and the City of Flint on January 16, 2016, one day after President Obama declared a federal state of emergency for the City of Flint, and three months after Flint had switched to a source of water with corrosion control treatment.

The 2018 OIG report concludes that “Management Weaknesses Delayed Response to the Flint Water Crisis.” It blamed ineffective communications, ineffective assessment of risk, confused oversight roles, and a failure to use existing authority. The report recommended that EPA “strengthen its oversight of state drinking water programs to improve the efficiency and effectiveness of the agency’s response to drinking water contamination emergencies.”  Notably, the report did not find that the delayed federal response resulted from factors that are commonly blamed when federal agencies fail to act – lack of authority, standards, money, personnel or other resources.   Existing personnel ultimately issued an emergency order under long-existing legal authority.   The cause of the problem and the risk of ingesting lead were recognizable -- Dr. Hanna-Attisha was immediately apprehensive about lead ingestion when a former EPA employee told her that Flint's water lacked corrosion control treatment.  Lack of concern for environmental justice seems absent, as the Obama EPA Administration widely publicized protecting low-income and minority communities, like Flint, from toxic contamination to be an agency priority.

Rather, the OIG reports suggest the Flint water crisis was enveloped in a bureaucratic fog which prevented EPA employees from seeing the urgency of the problem with enough clarity to take prompt and effective corrective action.  The fog included patterns of unfruitful extended inter- and intra-agency and inter-governmental discussions, deference, disagreements and indecision.  For example, in February 2015 EPA received six-months of lead monitoring data in which the 90th percentile of results exceeded the Practical Quantitation Limit (PQL), which by rule required Flint to optimize corrosion control treatment.  At the same time, EPA was concerned that Flint’s lead sampling protocol was biasing lead results lower.  In April 2015 EPA learned that Flint did not have corrosion control treatment in place.  In July 2015 EPA informed MDEQ that Flint had been required to provide corrosion control treatment, and the Region V Administrator advised Flint’s Mayor that EPA would “work with” the City on lead issues.  Two weeks later, EPA received a second six-months of drinking water monitoring data revealing even higher lead levels.  With MDEQ disputing that corrosion control treatment was required at Flint, Region V agreed in August 2015 to request a legal opinion from the EPA Office of Water, but it did not submit an official request until September 30, 2015.  In response, the Office of Water, without mentioning Flint, issued not a legal opinion, but a guidance memo in November 2015.  On several occasions in September 2015, the Region V administrator contacted the MDEQ, the Mayor of Flint, the EPA Administrator, and the EPA Office of Research and Development urging a variety of protective actions.   

This bureaucratic fog also contributed to EPA’s inability to react to citizen complaints about the Flint water supply.   Between May 2014 and January 2016 when the EPA Emergency Administrative Order was issued, EPA Region V received 87 complaints about Flint drinking water conditions, 30 of which raised concerns about lead.  Generally, EPA staff responded to these lead complaints with form letters recommending that citizens contact the MDEQ or the Flint water department.  Six responses took over a year to issue, and the OIG found no response to 11 lead complaints.  Region V staff did not see these complaints as indicative of a problem in Flint, and certainly not a pressing one.  In sum, the bureaucratic fog that impaired the federal response to the Flint water crisis is noteworthy not just in the context of how EPA operates but also as to the broader contemporary concern over the existence of a Deep State that subjugates public concerns to its own needs, processes and schedules.

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

Posted on October 19, 2017 by William Hyatt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EPA Beginning Anew at Portland Harbor Superfund Site?

Posted on October 18, 2017 by Rick Glick

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

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

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

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

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

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

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

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

EPA Proposes to Defund Superfund Litigation

Posted on October 12, 2017 by David Uhlmann

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

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

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

“This is not a ‘major rule’ but it is a “significant regulatory action”…. Really?!

Posted on March 30, 2017 by Donald Stever

On November 28, 2016, EPA released its somewhat euphemistically titled “Hazardous Waste Generator Improvement Rule” (81 Fed. Reg. 85732) which, in a whopping 97 pages of miniscule federal register text, revises the structure, and in some cases the substance of the rules that apply to generators of hazardous waste under RCRA. I have no space in a blog to detail the substantive changes, tweaks and repositioning to Parts 257, 260, 261, 262, 263, 264, 265, 268, 270 and 279, but I will mention some highlights. This is, of course, a major rule, but it is also an important rule in that it sensibly addresses a wide range of longstanding problems in both the organization and substance of the regulatory provisions that govern the conduct of entities that generate hazardous waste.

The largely needed and helpful changes made by the rule include (1) subtle modifications to the definitions of the three generator categories, (2) refinement of how accumulation of both hazardous waste and acutely hazardous waste is treated, (3) adding a definition of “central accumulation area, (4) adding a requirement that partial reclamation facilities and recyclers who receive manifested hazardous waste submit biennial reports, (5) and a substantial reorganization of § 262.10 by deleting and re-numbering several of its subsections while amending them in the process. In addition, EPA added new requirements for making hazardous waste determinations, attempts to define what “generator knowledge” means in connection with testing, changes certain recordkeeping requirements, and requires small quantity and large quantity generators to identify waste codes associated with their waste. The rule specifies procedures for counting hazardous waste, revises the mixture rule, amends the marking and labeling requirements by adding very specific requirements, adds not insubstantial new requirements for the use of satellite accumulation areas (my favorite sub-amendment is EPA’s effort to define the term “three days”), adds new closure requirements, revises the conditions for exemption from various requirements for all three generator categories, imposes a new “re-notification requirement” to obtaining an ID number, modifies the criteria for episodic generation events, and imposes new requirements for emergency planning,

There are other changes, a few of them, well, mystifying. My favorite is what appears to be a meaningless nomenclature change. From November 19, 1980 until November, 2016, if you generated 100 kg or less of hazardous waste or 1 kg or less of acutely hazardous waste you were called a “Conditionally Exempt Small Quantity Generator”.  After the effective date of the ‘Generator Improvement Rule” you are now called a “Very Small Quantity Generator”. EPA’s explanation for this change is truly wonderful - EPA felt that the term “conditionally exempt small quantity generator” was confusing because “all three categories of generators are conditionally exempt” from certain requirements. 82. Fed. Reg. 85740. Gee, I was never confused nor, to my knowledge, were any of my generator clients. I was also amused that EPA felt it necessary to try to define the term “three days” in connection with a provision pertaining to satellite accumulation.

Overall, however, this is a major, beneficial, rule. So what is the point of the heading to this blog? In the required boilerplate at the end of the preamble prior to the twenty-five pages of the actual rule, EPA concludes, as it must, that it is not required to subject the rule to scrutiny under the Congressional Review Act because the action is “not a major rule” as defined by 5 U.S.C. 804(2).  The Congressional Review Act?  Hmmm. Is that all?  No. In order to push this clearly beneficial rule out the door, not only did EPA employees have to generate 69 pages of notice-and-comment verbiage, but, in addition, also the Agency had to (a) submit the rule to OMB per Executive Orders 12866 and 13563 because though not “major”, it is a “significant regulatory action” in that it “may raise novel legal or policy issues arising out of legal mandates”, (b) satisfy the Paperwork Reduction Act by demonstrating that the rule is necessary, (c) satisfy the Regulatory Flexibility Act by demonstrating that the rule will not have a significant economic impact on small entities, and, in addition, also demonstrate that (d) it does not contain an unfunded mandate in violation of the Unfunded Mandates Reform Act, (e) it does not have “federalism implications” per Executive Oder 13132, (f) it does not have sufficient “tribal implications” to trigger review per EO 13175, (g) it does not present a disproportionate risk to children per EO 13045, (h) it does not significantly affect energy supply, distribution or use per EO 13211, (i) it does have environmental justice implications per EO 12898, and (j) it does not involve technology transfer.

Just think of the number of employee hours it took for EPA to make these largely sensible modifications to the RCRA generator requirements. If Mr. Pruitt gets his wish to shrink EPA staff by 30% how is the Agency going to get anything accomplished?

Deja Vu All Over Again!

Posted on March 14, 2017 by Paul Seals

Has it really been 36 years!  It seems like I have been here before.  In 1981, I was Assistant General Counsel with the Texas Department of Water Resources, a predecessor agency of the current Texas Commission on Environmental Quality.  Upon Ronald Reagan’s inauguration as the 40th President,  I was appointed Regional Counsel of the Environmental Protection Agency in Dallas. 

EPA was on the chopping block with proposals to drastically reduce its budget, positions, and programs.   The agency lawyers were an endangered species, targeted for elimination.   The agency was reorganized to do away with the Enforcement Division.  The administration supported the transfer of the implementation and enforcement of the environmental statutes to the states.   This was 1981 not 2017.

The early years of the new administration were filled with much anxiety based in part on proposed budgets that had no relationship to existing staffing.  Were we to go through a reduction in force and fire attorneys and staff?  Such a RIF was not necessary given the atmosphere and morale within the agency.  In early 1983, during a Regional Counsels’ meeting, an informal headcount showed that through attrition there had been over a 30% reduction of attorneys in the regional offices since the inauguration. 

The effort to dismantle and defang the agency was met by public outrage, and in the midst of the turmoil, Administrator Anne Gorsuch was cited for contempt of Congress.  Shortly thereafter, there was change in the agency leadership with the return of Bill Ruckelshaus, whose helmsmanship righted the agency and successfully refocused the agency’s staff on its critical mission.  

What did I learn from this experience?  Quite simply, don’t overplay your hand.  An election may give the President and a new administration a perceived mandate for change, but that mandate must be tempered with an appreciation of the overwhelming public support for the mission of the agency.  As my good friend, mentor, and former Regional Administrator, Dick Whittington, would say:  “we must be able to separate the public will from the public whim.”

Why You Should Pay Attention to ECOS

Posted on October 26, 2016 by Martha Rudolph

ECOS – the Environmental Council of States – I suspect that most of you have heard of it, but what do you really know about ECOS?  And, why should you care?  As the current Past President of ECOS, I acknowledge upfront that I might be biased – but consider the following.  ECOS is the national non-profit, non-partisan association of state and territorial environmental agency leaders.  ECOS was founded in late 1993 at a time when the relationship between states and the EPA was strained.  As Mary A. Gade, then director of the Illinois Environmental Protection Agency, put it:  “The times called for states to assume primary responsibility and leadership for environmental protection.  As individual states began to articulate this new perspective, state commissioners realized the need to band together for information-sharing, strength, and support.” 

Today, reflected in the ECOS 2016-2020 Strategic Plan, much of ECOS’ original purpose remains:  “To improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of the United States of America. Our belief is that state government agencies are the keys to delivering environmental protection afforded by both federal and state law.”

While the purpose remains consistent, how ECOS achieves it has evolved.

One example lies in the ECOS-organized forums where states and EPA meet to discuss - and often debate - environmental concerns and our respective roles in implementing and enforcing environmental programs.  While the early ECOS years were not without success working with EPA, the tenor of the overall relationship with EPA was uneven.  Today, ECOS has a productive relationship with EPA.  We still discuss, debate, and disagree, but in a much more constructive way.  EPA representatives at all levels routinely attend and engage in the spring and fall ECOS meetings, as well as other ECOS conferences.  ECOS members have been invited to internal EPA budget meetings to share our budget concerns and needs.  ECOS and EPA have worked on several joint-governance projects, including the creation of E-Enterprise for the Environment.  Through E-Enterprise, state, EPA and tribal representatives work to streamline environmental business processes and share innovations across programs to improve environmental results, and enhance services to the regulated community and the public by making government more efficient and effective.

ECOS is fast becoming the “go-to” organization for Congress, the White House, federal agencies, national organizations, and the media to learn about state issues, concerns, positions, innovations and ideas regarding environmental matters.  Through engagement with senior government officials, testimony before Congress and many position letters, ECOS has expressed state perspectives on key legislative and regulatory issues, like reform of the Toxic Substances Control Act, funding for state environmental programs and water infrastructure, increased authority over coal combustion residual sites, workload flexibility in state-EPA agreements, enforcement training, expediting federal facility cleanups, and environmental justice tools. 

ECOS has developed relationships with the Department of Energy and the Department of Defense:  these agencies regularly participate in ECOS.    ECOS’ Legal Network brings state environmental agency counsel together with EPA counsel and DOJ’s Counselor, to explore lessons learned from successful enforcement and compliance initiatives, and to discuss best practices and enhanced collaboration. 

So, how about the relationship among the states themselves?  ECOS has also become a venue for states to explore differences in positions and ideas.  Not surprising, membership within ECOS is politically diverse.  ECOS has recognized and embraced this diversity by creating a space for states to express their opinions and positions, encouraging members to learn from each other, to reach “across the aisle” to understand differing perspectives, to compromise where needed and to develop strong and lasting relationships.  ECOS will pull in experts from within the states and from other organizations to provide valuable and sometimes critical perspectives and analyses on important issues, so that state environmental leaders can better understand the complexities and impacts of environmental programs and initiatives.  The lawyers of ACOEL are one source of that expertise, and they have provided valuable legal analyses to ECOS and its members on the Clean Power Plan and WOTUS.  ECOS is even reaching across state agency lines, as shown by this spring’s Memorandum of Agreement with ECOS, EPA, and the Association of State and Territorial Health Officials to advance cooperative initiatives pertaining to environmental health, acknowledging that the public health and well-being of U.S. citizens relies on the condition of their physical environment.

So, why should you care about ECOS?  Because the vast majority of day-to-day environmental program adoption, implementation and enforcement is done by the states.  As Mary A. Gade said when ECOS was first created: “Charged with advancing a state’s environmental agenda, state commissioners strategize daily with governors, state and national legislators, and local government officials to accomplish their goals.  State environmental commissioners have political access, substantive expertise and, most importantly, legislative combat experience.”  When you organize a group of battle-ready commissioners who lead state environmental programs, and who meet and work together on a regular basis, wouldn’t you want to know what they are doing?  My advice:  check out http://www.ecos.org and find out what you are missing.

Does It Matter That Air Quality Is Improving?

Posted on August 3, 2016 by David Flannery

The Environmental Protection Agency is expected to announce its final Cross State Air Pollution Rule (CSAPR) update by the end of summer 2016.  But does the update account for the fact that several new regulatory programs that could significantly improve downwind air quality?

In his posts of August 3, 2015 and April 30, 2014, ACOEL Fellow Paul Seals likened the voyage of the interstate transport of air pollutants to “Homer’s Odyssey”.  He promised us all that the D.C. Circuit decision of June 24, 2015, in the case of EME Homer City Generation, L.P., v. EPA, concerning the CSAPR would not end the voyage of interstate transport – and indeed it has not. 

Critical to the development of a rule to address the interstate transport of air pollutants is that the rule not call for emission reductions that are more than necessary to achieve attainment in every downwind state.  EPA’s 2017 deadline for attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS) invites the question of what the ozone air quality is likely to be in 2017.  EPA’s proposed CSAPR Update identified only 4 monitors in the East that it predicted to be in non-attainment with the 2008 ozone NAAQS in 2017. 

EPA’s prediction of 2017 air quality, however, did not take into account several new regulatory programs that are either on-the-books or on-the-way. These programs are certain to continue to improve ozone air quality in the East.  Among the more significant of these programs are:  

-          Pennsylvania Reasonably Available Control Technology (RACT) II

-          Ozone Transport Commission Model Rules

-          Connecticut RACT

-          New York High Energy Demand Day (HEDD) controls; and

-          Connecticut High Energy Demand Day (HEDD) controls

To illustrate the significance of this point, Alpine Geophysics modeled the impact of only a portion of the Pennsylvania RACT II program on ozone concentrations at the nonattainment monitors downwind of Pennsylvania identified by in the CSAPR proposal.  The following results from the Alpine Geophysics report illustrate that even one of these new programs is likely to significantly improve ozone air quality at the critical monitors in the East:

EPA Nonattainment Monitors

Ozone Improvement needed (ppb)

Ozone Improvement Achieved By PA RACT Alone

Connecticut Fairfield (90013007) 1.2 83%
Connecticut Fairfield (90019003) 2.1 48%
Connecticut New Havens (90019003) 1.3 54%

Such improvement - related to only one of the unaddressed programs - raises the question about whether all of the EPA identified nonattainment monitors will, in fact, be in attainment with the 2008 ozone NAAQS when these on-the-books and on-the-way programs are implemented in 2017, even without the CSAPR update. 

The answer to this question, and to the merit of any new transport rule, lies with additional air quality modeling of these programs.  When EPA announces its final rule on the CSAPR update by the end of summer, we will see whether the agency has taken account of these additional programs and see the future direction of this on-going odyssey.  

"We All Let the Citizens of Flint Down"

Posted on February 4, 2016 by Alexandra Dapolito Dunn

With busloads of concerned citizens from Flint and nearby cities gathered around the Rayburn House Office Building on February 3, environmental regulators and science experts appeared before the U.S. House Committee on Oversight and Government Reform (Committee) to give testimony regarding lead contamination in Flint, Michigan’s public drinking water.  As detailed in this recent NPR podcast, well worth the 40 minute listen, between 6,000 and 12,000 children are estimated to have elevated blood lead levels following the City’s drinking water source change from Detroit water to water from the Flint River in 2014. 

How could a crisis like this have happened? While at first water policy groups were quick to highlight the nation’s aging water infrastructure and investment gap – EPA’s most recent estimate is that $384 billion is needed to assure safe drinking water from 2013 to 2030 – and certainly lead pipes to homes in older communities is a costly replacement problem – at the root of Flint was classic government dysfunction combined with assessments of safety that make sense to regulators but perhaps not to everyday people. At the hearing Joel Beauvais, acting Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Water faced questions from Committee members about the Agency’s delayed response to the situation, while the Michigan Department of Environmental Quality’s acting Director Keith Creagh was to explain why state officials did not act to address contamination immediately. Both officials attributed the crisis to breakdown in communication between the agencies that inhibited officials’ swift action. What happened in Flint “was avoidable and should have never happened,” according to Beauvais; while Creagh’s testimony stated that “[w]e all share responsibility in the Flint water crisis, whether it’s the city, the state, or the federal government… We all let the citizens of Flint down.”

The hearing ultimately took on a forward look, noting a reaffirmed commitment to protecting public health. “We do have clear standards. We do have clear accountability, so we have a clear path forward, said Creagh. “We are working in conjunction with the city, the state and federal government to ensure it doesn’t happen again.”  Beauvais noted “it is imperative that Michigan, other states, EPA and drinking water system owners and operators nationwide work together and take steps to ensure that this never happens again.”

EPA and Michigan state and local officials are now in non-stop mode to ensure that prompt, concerted efforts are taken to address public health hazards. Members of Congress are introducing bills to fund Flint’s systems and to aid the affected citizens.  Even philanthropic groups are stepping in.  EPA’s Inspector General is doing a deep dive into the Agency’s response, Michigan Governor Snyder is seeking answers, and even the Federal Bureau of Investigation is looking into criminal aspects of the matter. Flint’s drinking water will get better – and yet the affected population may never fully recover from their excessive lead exposures.  

The #FlintWaterCrisis is a sober reminder of the need to keep the nexus between environmental quality regulation and public health protection very tight.  As professionals in the environmental field, we cannot fear having frank conversations in the open about risks – and the importance of taking precautionary steps – when human health is at issue.  

EPA RELEASES FRAMEWORK FOR FUTURE CERCLA 108(b) FINANCIAL RESPONSIBILITY RULEMAKING

Posted on October 26, 2015 by Ronald R. Janke

The Environmental Protection Agency has released a framework for its future financial responsibility rulemaking under CERCLA 108(b).  Although this framework states EPA’s current thinking only in general terms, this document represents the clearest public statement of the agency’s intentions since it announced its intention to develop such rules for hardrock mining facilities in 2009.  This framework also informs of EPA’s intentions toward other classes of facilities in future rulemakings under this authority.  This framework appeared as part of a court filing on August 31, 2015 and was the subject of an EPA webinar on September 29, 2015.

EPA states that the regulatory approach it is considering has five foundational components. First, the universe of facilities to be regulated are hardrock mines and “primary processing activities located at or near the mine site that are under the same operational control as the mine.”  Second, the flow of funds from the financial responsibility instrument to the CERCLA would supplement existing CERCLA sources of funding, as EPA intends to use its existing CERCLA enforcement processes first to clean up sites.  Third, the scope and amount of financial responsibility would consist of three components: (1) response costs, calculated based on a model being developed by EPA to reflect the primary site conditions; (2) a fixed amount for natural resource damages and (3) a fixed amount for health assessment costs.

Fourth, EPA does not intend to preempt state, tribal and local government mining and reclamation closure requirements.  EPA intends to avoid preemption under CERCLA 114(d) by adopting financial responsibility requirements that are “in connection with liability for a release of a hazardous substance” in contrast to “many” state regulatory requirements designed to assure compliance with reclamation and closure requirements.  Fifth, EPA likewise intends that its CERCLA financial responsibility requirements will be distinct from federal closure and reclamation bonding requirements imposed by other federal agencies under other laws with jurisdiction over mining on federal lands.

The morsel of information provided in EPA’s framework leaves interested parties hungry for more information by what is left unsaid.  Particular concerns are the response cost model and its inputs and the path that EPA intends to tread around the multitude of existing financial assurance mechanisms that already apply to hardrock mining to avoid duplication and preemption.  In this regard, EPA could not have picked a more difficult place to begin drafting CERCLA 108(b) rules than for this industry, which has in place many and extensive financial assurances governing the impact of its operations.

Curiouser and Curiouser: Sixth Circuit Not Sure of Jurisdiction but Stays WOTUS Rule Anyway

Posted on October 9, 2015 by Rick Glick

Does this make sense to you?  Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act.  Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule.  And then, the court acknowledges it may not have jurisdiction but issues the stay anyway!  That is exactly what Sixth Circuit did in the case published today.  

This case is among many seeking to block the rule.  The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.”  But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation. 

The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly.  The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.

The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination.  The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making.  Pants first, then shoes.

Did the majority consider the situation an emergency that required immediate action?  No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule.  The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation. 

Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal?  Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing.  Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record.  Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.

Whole Lot of Craziness Going On

Posted on September 2, 2015 by Dick Stoll

A whole lot of craziness is going on in federal district and appellate courts all over the country right now.  About what?  About judicial review of EPA’s recent “WOTUS” rule under the Clean Water Act (CWA).  So I can avoid wheel re-invention, see the very recent ACOEL blogs by Seth Jaffe and Rick Glick.

So what’s the problem?  You might find a lot to hate about the Clean Air Act, the Resource Conservation Act, the Safe Drinking Water Act, and I could name a few others, but at least they all have one good thing going for them:  they all provide in a crystal clear manner that judicial review of EPA’s national rules under those statutes will lie exclusively with the D.C. Circuit.  No ifs, ands, buts, or maybes.

For reasons I have never understood (and I have been trying since the 1970s), Congress in its infinite wisdom chose a different path in the CWA.  In Section 509, they listed seven types of actions that must be reviewed in a federal Court of Appeal (not necessarily the D.C. Circuit) and left any other type of action to be reviewed initially in federal district court.

Over the years, a lot of mixed case law has developed regarding EPA’s CWA rules that don’t fit neatly within one of the seven types of actions Section 509 has specified for Court of Appeals review.  Quite predictably, as reflected in Seth’s and Rick’s recent blogs, three district courts last week reached conflicting results over whether WOTUS fits within the seven types.  In its WOTUS preamble, EPA included a discussion about confusion in the courts over the issue and took no position on whether WOTUS should initially be reviewed in a district court or Court of Appeals.

So how crazy is this:  right now, we have (1) a ruling from one district court judge in North Dakota finding he has jurisdiction and enjoining EPA from enforcing WOTUS; (2) a statement from EPA saying the agency will honor his injunction only in the 13 States that were plaintiffs in that action; (3) an order from that judge directing the parties to brief the issue of whether EPA has authority to honor his ruling in only those states; (4) decisions from two other federal district judges holding WOTUS judicial review must be brought only in a Court of Appeals; (5) numerous cases filed in several circuit Courts of Appeals that have been transferred (at least for now) to the 6th Circuit; (6) an almost certain EPA appeal to the 8th Circuit in attempt to reverse the North Dakota judge’s injunction; and (7) WOTUS review cases filed in numerous other federal district courts by lots of parties with various motions still pending.

This is early September, and I can’t imagine how this won’t get a lot crazier over the next few months.  Congress in its infinite wisdom!

First Blood: North Dakota Federal Court Strikes WOTUS Rule

Posted on August 31, 2015 by Rick Glick

With so many challenges filed in so many venues to EPA’s Waters of the United States or WOTUS rule, it seemed inevitable that some plaintiffs somewhere would find a sympathetic court.  And so it is that thirteen states found U. S. District Judge Ralph R. Erickson to preliminarily enjoin the “exceptionally expansive view” of the government’s reach under the Clean Water Act.

This case is interesting from a couple of perspectives.  First, Congress conferred original jurisdiction for challenges to EPA “effluent limitations or other limitations” and for permit decisions upon the Circuit Courts of Appeal.  In the past two days, district court judges in West Virginia and Georgia concluded they lacked jurisdiction over challenges to the WOTUS rule on that basis.  Judge Erickson, however, did not feel so constrained. 

The judge found that the WOTUS rule is simply definitional, and neither an effluent limitation nor an “other limitation” on states’ discretion.  Further, the judge found that the rule “has at best an attenuated connection to any permitting process.”   The conclusion states’ discretion is not affected is a bit odd in that the judge later concludes that the state plaintiffs satisfied all the criteria for a preliminary injunction, including irreparable harm caused by the rule. 

Second, Judge Erickson plays on an internecine dispute between EPA and the Army Corps of Engineers in an unusual way.   In my first sentence I refer to the WOTUS rule as EPA’s, although the rule was jointly adopted by EPA and the Corps.  However, recently leaked internal government memoranda indicate that the Corps disavows much of the technical support and policy choices underlying the rule.  Judge Erickson obliquely references these memoranda and seems to rely on them to conclude that plaintiffs are likely to succeed on the merits of their challenge. 

Typically, courts are loathe to rely on internal documents of uncertain provenance, as they prefer to leave the government room to openly discuss policies under development without fear its deliberations would be disclosed.  But in this case, Judge Erickson notes that he has not been presented with the full record for the WOTUS rulemaking, and so felt justified in citing the Corps memos. 

As Seth Jaffe has observed, it seems likely that Judge Erickson’s jurisdictional determination will not stand, and his reliance on the confidential exchanges between the Corps and EPA is a little disturbing.  However, his order highlights EPA’s poor management of this rulemaking, which has led to challenges from states, property rights advocates and environmentalists—a kind of anti-EPA trifecta. 

As previously noted, EPA released its draft WOTUS rule before the work of the Science Advisory Board was complete, thus raising questions as to the rule’s scientific objectivity.  Then EPA seemingly disregarded the technical concerns raised by its rulemaking partner, the Corps.  Any WOTUS rulemaking would be controversial, but EPA has unnecessarily raised the bar for public acceptance.

Homer’s Odyssey Redux in the DC Circuit

Posted on August 3, 2015 by Paul Seals

In the latest chapter of Homer’s Odyssey, the DC Circuit, on remand from the Supreme Court, determined that EPA had exceeded its statutory authority by imposing uniform emissions reductions under the Transport Rule also known as the Cross-State Air Pollution Rule.  On July 28, 2015, the DC Circuit held in EME Homer City Generation, L.P v. EPA that the 2014 sulfur dioxide (SO2) emissions budgets for Alabama, Georgia, South Carolina, and Texas, as well as the 2014 ozone-season nitrogen oxide (NOx) budgets for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia are invalid.  The court remanded without vacatur to EPA for reconsideration.

A brief history of Homer’s voyage so far.

In 2011, EPA promulgated the Transport Rule to address emissions from upwind States that contribute to nonattainment of National Ambient Air Quality Standards (NAAQS) in a downwind State under the Clean Air Act’s “good neighbor provision”.  42 U.S.C. Sec. 7410(a)(2)(D)(i).  Upwind States challenged the Rule, contending that it would lead to over-control of emissions in the upwind States.  The Rule imposed uniform pollution reductions on upwind States regardless of the actual amount of pollution that individual upwind States contributed to the downwind States.

In 2012, the DC Circuit considered these over-control challenges, agreed with the petitioners, and vacated the Rule.   See EME Homer City Generation, L.P. v. EPA, 696 F/3d 7 (D.C. Cir. 2012)

On review, the Supreme Court reversed, holding that the potential for over-control did not require invalidation of the Rule on its face.  To address potential over-control in an upwind State, the Court recognized that requiring emissions reductions by more than is necessary to achieve attainment in every downwind State to which it is linked would be impermissible.  The Court explicitly authorized an upwind State to contest the emissions reductions under the Rule through “particularized, as-applied challenges.”  EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584 (2014).

On remand, the DC Circuit considered the “as-applied challenges” as informed by the Supreme Court decision.   The DC Circuit evaluated the challenges by determining whether a downwind location would still attain its NAAQS if linked upwind States were subject to less stringent emissions limits.   Based on the record, the Court determined that EPA’s uniform cost thresholds have required States to reduce pollutants beyond the point necessary to achieve downwind attainment, which violated the Supreme Court’s clear mandate.

Although invalidating the 2014 emissions budgets, the DC Circuit remanded without vacatur.   The Court stated that on remand, the parties may provide new evidence, data, or calculations for EPA to consider in establishing emissions budgets.

What will be the next chapter in this Odyssey?  What effect will the decision have on the emissions trading market developed around the 2014 emissions budget?  Will there be further appeals?  How and when will EPA reconsider the emissions budgets?

The voyage is not over!

Water, Water, Everywhere - and not a Drop Unlitigated

Posted on July 10, 2015 by Susan Cooke

The U.S. EPA and Army Corps of Engineers have designated July 13 as the official issuance date for purposes of judicial review of their Final Rule defining the scope of “waters of the United States” or “WOTUS” under the federal Clean Water Act.  However, a number of lawsuits have already been filed, including four separate actions brought on behalf of a total of 27 states and a fifth action filed by Murray Energy Corp., a privately held coal mining company.

The lawsuits seek to overturn the Final Rule on several grounds that include:

  • Usurpation of state authority over intrastate waters in violation of the Constitution’s Commerce Clause and Tenth Amendment
  • violation of the federal Administrative Procedures Act (APA) due to the Final Rule’s allegedly unlawful expansion of federal powers granted under the federal Clean Water Act, as well the arbitrary and capricious nature of the rulemaking;
  • violation of the APA’s requirement to provide notice and opportunity for comment on proposed rulemakings, and to properly respond to comments made during the comment period; and
  • violation of the National Environmental Policy Act’s requirement to prepare an environmental impact statement for a major federal action significantly affecting the quality of the human environment.  

The object of all this attention is a long expected – and expansive – WOTUS interpretation adopted by EPA and the Corps.  As reported on this blog site, the rule is controversial; the draft generated over one million comments.  For a comprehensive analysis of the draft rule, including the cases leading up to the rule, see the American College of Environmental Lawyers report for the Environmental Council of the States.  

The Final Rule, which does not change much from the draft, is intended to provide more certainty regarding what is and is not subject to the Clean Water Act’s Section 402 and 404 permitting provisions and its Section 311 oil spill prevention and response provisions so as to reduce case-by-case determinations of applicability.  Despite the inclusion of a number of definitions and exclusions, it is doubtful that this goal has been achieved, given the number of new situations where a “significant nexus” determination must be made.

The significant nexus inquiry finds its genesis in Justice Kennedy’s concurring opinion in Rapanos v. United States where Justice Scalia wrote the plurality opinion.  According to Justice Kennedy’s opinion, wetlands adjacent to navigable waterways are waters of the United States based on a “reasonable inference of ecologic interconnection” in accordance with the Supreme Court’s 1985 opinion in United States v. Riverside Bayview Homes.  However, isolated wetlands or wetlands adjacent to a non-navigable tributary, either alone or in combination with similarly situated lands in the region, [must] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable” in order to fall within the purview of the Clean Water Act.  Rejecting a bright-line test, Justice Kennedy noted that a “mere hydrologic connection should not suffice in all cases” as it “may be too insubstantial . . . to establish the required nexus with navigable waters as traditionally understood.”

The Final Rule broadly defines “tributaries” and “adjacent waters” and classifies them as “per se” jurisdictional waters, along with waters used in interstate or foreign commerce, interstate waters and wetlands, territorial seas, and impoundments of such waters.  It also identifies a number of other waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairies) as navigable waters if they meet the significant nexus test which involves consideration of a number of factors identified in a compilation of peer reviewed scientific reports assembled by EPA.  

All of the complaints reference the Supreme Court’s Rapanos decision, as well as the Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, regarding what constitutes a “navigable water”.  In particular, they claim that the Final Rule goes well beyond the limits set forth in those decisions, including Justice Kennedy’s “significant nexus” test in Rapanos.  Some of the complaints provide pretty convincing arguments on the latter point, and so another “wave” of litigation can be expected.  Given that the litigation now extends back 30 years, a paraphrase of that old adage about water – and litigation - being everywhere seems right “on course”.

EPA/Corps Adopt “Waters of the U.S.” Rule: What’s Next?

Posted on May 28, 2015 by Rick Glick

Today EPA and the Army Corps of Engineers released a prepublication version of the final rule defining “waters of the United States,” the jurisdictional trigger under the Clean Water Act.  The term needs defining because the Act extends to navigable waters and adjacent wetlands, but it is often not clear how some streams or wetlands relate to a navigable waterway, and the Supreme Court has provided conflicting guidance. 

So, the agencies have attempted to clarify.  With the new definition they hope to reduce the number of case-by-case jurisdictional determinations and litigation, but they understand full well the controversial nature of the rule, having received over a million comments on the draft published on April 21, 2014.  In response, EPA and the Corps today also released a battery of public relations offerings —press release, fact sheets, blogs, op-ed pieces—to explain and defend the rule.  The controversy will not end here.

As previously reported in this space, the impetus for the rule is uncertainty created by a 2006 Supreme Court decision in Rapanos.  In that case, a 5-4 split Court held that the government had overstepped its authority, but failed to issue a majority opinion.  Instead, four justices, led by Justice Scalia, proposed a rule in essence requiring that the subject waters or wetlands be free flowing and obviously wet.  The concurring opinion by Justice Kennedy would instead look for a “signficant nexus” between a wetland and a navigable waterway.  The lower courts have struggled ever since to discern a clear jurisdictional definition.

At first glance, the final rule does not veer much from the draft.  For a comprehensive analysis of the draft rule, including the cases leading up to the rule, see the American College of Environmental Lawyers report for the Environmental Council of the States.  Although EPA and the Corps have declared that the rule does not represent a major policy shift, a diverse ACOEL writing team—made up of experts in academia, non-profit organizations, and private practice—had differing opinions.  Some saw a sea change in federal policy, while others believed the draft rule was simply a restatement of existing policy. 

Congress has been fulminating about government overreach since the draft rule was published.  On May 12, 2015 the House passed HR 1732, the Regulatory Integrity Protection Act, in an effort to block the final rule.  If the Senate passes the bill, Congress will need to muster the votes to override a certain presidential veto.

Although the purpose of the final rule is to provide some certainty as to the scope of Clean Water Act jurisdiction, it is highly likely to be challenged by industry groups in the courts.  That means years of litigation and appellate review across the country, ultimately landing once again before the Supreme Court.  Whether we get clarity this time from the Court remains to be seen.

EPA’s New Coal Combustion Residuals Rule: A 745-Page Deferral With a 12,400-Ton Surprise

Posted on March 16, 2015 by Dick Stoll

(Reproduced with permission from Daily Environment Report, den, 03/12/2015. Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com)

Another Environmental Protection Agency battle focusing on coal has recently ended—for now at least. While most recent coal warfare has been fought on Clean Air Act fronts, this battle was fought on the fields of the Resource Conservation and Recovery Act. The target is coal combustion residuals (CCR) generated by electric utilities.

The EPA’s CCR rule will soon be published in the Federal Register. It has been a long time coming. The flash point for the rulemaking—the Archduke Ferdinand moment—was the December, 2008 Tennessee Valley Authority (TVA) Kingston, Tennessee incident. TVA’s ash pond dike ruptured and millions of gallons of coal ash and water spilled into the surrounding waters and land.

The Kingston spill received extensive press coverage, and it occurred just a few weeks after President Barack Obama was elected. Obama had nominated Lisa Jackson to be his EPA Administrator, and at her Senate confirmation hearing in January 2009, Jackson committed to take aggressive regulatory action to minimize the chances of similar occurrences in the future.

The EPA first proposed the rule in 2010, and issued three supplemental notices along the way. In 2013, because it was starting to look as though the EPA would take forever to issue a final rule, both industry and public interest groups secured a ‘‘citizens suit’’ federal court order forcing a deadline.

Now that the rule is out, more battles are coming. In light of the intense and polarized advocacy during the rule’s development, both judicial review and attempts to amend RCRA are a virtual certainty. And remarkably, for the most pivotal issue of the battle, the EPA’s new rule simply kicks the can down the road—thus setting up a completely new round of rulemaking unless Congress intervenes...

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Dancing in Jackboots

Posted on January 9, 2015 by Steve McKinney

While Congress designed CERCLA to enhance EPA’s ability to respond to hazardous contamination, the statute requires a level of cooperation between federal and state authorities for certain CERCLA activities, including the NPL listing process.  But like parents forcing middle-schoolers to dance in etiquette class, Congress’s efforts to make EPA coordinate with States often begins with squabbles over who leads and ends with squashed toes. 

So how much state involvement is required under CERCLA?  More than you might think.  For example, CERCLA section 121(f) states that EPA must provide “for substantial and meaningful involvement” by each State in the “initiation, development, and selection of remedial actions to be undertaken in that State.”  This includes state involvement in decisions whether to perform preliminary assessments and site inspections, allocation of responsibility for hazardous ranking system scoring, negotiations with potentially responsible parties, and participation in long-term planning processes for sites within the State.  CERCLA section 104(c)(3) mandates that before EPA can provide a Superfund remedial action in a particular State, the State must provide EPA with specified assurances in writing.  Those assurances include the State’s agreeing to undertake “all future maintenance of the removal and remedial actions provided for the expected life of such actions” and paying “10 per centum of the costs of the remedial action, including all future maintenance.”  These statutory provisions are confirmed and enhanced by EPA’s own regulations.  See, e.g., 40 C.F.R. 300.500; id. at 300.510.  Further, two EPA guidance memoranda outline a process “to include State input in NPL listing decisions” and to resolve disputes “in cases where [an EPA] Regional Office . . . recommends proposing or placing a site on the [NPL], but the State . . . opposes listing the site.”  See Memo. from Elliot P. Laws, Asst. Admin. EPA Off. of Solid Waste and Emergency Response (“OSWER”), to EPA Reg. Admins., at 1 (Nov 14, 1996); Memo. from Timothy Fields, Jr., Asst. Admin. OSWER, to EPA Reg. Admins., at 1 (July 5, 1997) (Fields Memo.).  This policy requires EPA regional offices to “determine the position of the State on sites that EPA is considering for NPL listing . . . as early in the site assessment process as practical,” to “work closely with the State to try to resolve [any] issue[s],” and to provide the State with “the opportunity to present its opposing position in writing” before EPA Headquarters “decide[s] whether to pursue NPL listing.”  Fields Memo. at 2. 

EPA has historically taken these laws, rules, and guidance to heart, consciously trying to avoid stepping on state feet in the NPL listing process.  Of the over 200 sites that EPA has proposed for listing since 1995, only the Fox River Site in Wisconsin was proposed over state opposition—and that listing was never finalized.   EPA’s deference makes sense considering that a failure to obtain state assurances generally means EPA cannot access the Superfund to finance its remedial activities.  Unfortunately, there are signs EPA’s cooperative approach may be changing.  EPA recently proposed the 35th Avenue site in Birmingham, Alabama, for NPL listing without Alabama’s concurrence.  While EPA claims state support for the listing (79 Fed. Reg. 56,538, 56,544 (Sept. 22, 2014)), the rulemaking docket contains letters of opposition from both the Alabama Department of Environmental Management and the Alabama Attorney General.  Alabama has made clear that it has no ability to fund any remedial efforts at the site, and has no intention of providing any of the required assurances.  Moreover, EPA did not follow its own guidance regarding the “nonconcurrence” dispute.  In short, while EPA and Alabama are facing one another, EPA may have shown up to this dance wearing jackboots.  

What’s Next for EPA’s Next Generation Compliance Initiative?

Posted on January 5, 2015 by Edward F. McTiernan

If you want a sense of emerging developments likely to impact the business community it is important to keep an eye on pronouncements from EPA’s Office of Enforcement and Compliance (OECA).  OECA is the “lead” for EPA’s Next Gen compliance initiative, which will continue to set enforcement priorities as it rolls out through 2015.  Next Gen is far from perfect and severely underfunded, but since its principles provide the guideposts for compliance policy, being well informed provides an important edge in compliance situations. 

For years EPA has been calling on federal and state enforcement managers to develop approaches that go beyond traditional single facility inspections and enforcement.  EPA took the lead in its FY 2014 National Program Manager’s Guidance OECA by announcing the Next Generation Compliance Initiative.

Next Gen focuses on five areas:

1. Designing and drafting regulations and permits that are simpler and easier to implement.

2. Using advanced emissions/pollutant detection technology so that regulated entities, government, and the public have prompt access to monitoring data concerning environmental conditions (as well as potential violations).

3. Electronic submission of permit applications and monitoring data.

4. Prompt web-posting of traditional compliance data, and presenting information obtained from advanced emission monitoring and electronic reporting (so-called big data sets) to the public.

5. Developing data analytics to guide enforcement activities.

EPA kicked off Next Gen in style.  A major policy statement appeared in the September-October 2013 issue of ELI’s Environmental Forum.  The Next Gen strategy was reaffirmed in OECA’s FY 2015 national program manager’s guidance; in numerous interviews and public statements by senior EPA officials and in a compliance plan announced in October 2014.  These efforts are continuing.  Indeed, George Washington Law School will convene the latest in a series of events focusing on Next Gen compliance on March 26 and 27, 2015.  The symposium will address the role of advanced monitoring in environmental compliance and enforcement.  In addition, OECA staff have presented a number of Next Gen workshops to state officials.

Despite EPA’s roll-out efforts, Next Gen has had critics who find the initiative too vague to be helpful. The Government Accountability Office found that OECA lacks a strategic plan to implement the initiative. In addition, Next Gen does little to reward good behavior.   In fact, Next Gen ignores positive feed-back as a driver of improved compliance.        

While increased use of technology and public disclosure sound great, it remains to be seen how OECA will implement Next Gen in practice. Nevertheless, whether Next Gen has staying power or not, there are several themes that need to be considered:

1.       OECA’s focus on improved transparency and community participation is here to stay and enhanced community outreach will increasingly find its way into EPA (and state) regulations.  To keep pace, the regulated community needs to continuously rethink how to use media (new and old) to inform and engage stakeholders, especially members of vulnerable communities.

2.       EPA and delegated states will continue to experiment with ‘innovative enforcement strategies’ using advanced monitoring and data analytics and that rely less upon traditional inspections; self-reporting and tips.  Industry should look for opportunities to provide input to these efforts.       

3.       Monitoring data is now a public resource, easily shared and routinely subjected to new uses. Therefore, rigorous quality assurance and quality control is essential at every step of the data collection and reporting cycle. Use of software that flags inconsistent results or mathematically impossible outcomes (like EPA’s Greenhouse Gas Reporting Tool) should be dramatically expanded.  

4.       E-reporting cannot be a one-way street based simply on replacing paper reports with electronic submissions.  OECA needs to provide guidance and support so that regulators can invest resources and develop policies that ensure that they can use e-reporting to provide relevant compliance assistance in real time. 

We’ll need to wait and see whether OECA’s Next Gen Initiative will play a major role in shaping future environmental enforcement.   In the meantime, OECA’s framework for achieving more effective compliance can serve as a guide for advanced companies to refine their environmental management systems while helping to focus enforcement efforts on the worst performers.      

What Will You be Reading Over the Holidays?

Posted on December 30, 2014 by John Manard

You’ll have to turn to more traditional holiday reading because EPA’s methane reduction strategy for the oil and gas industry won’t be available until next year.  On March 28, 2014, the White House released its Strategy to Reduce Methane Emissions and instructed EPA to develop a comprehensive plan to reduce methane emissions from landfills, coal mines, agricultural operations, and the oil and gas industry.  The White House further directed EPA to address oil and gas sector methane emissions by building on the emission reduction successes of existing regulations and voluntary programs. 

EPA responded to this directive by publishing five white papers on methane emission sources in the oil and gas sector in April 2014, and requesting peer review and comment on each. The white papers address methane and volatile organic compound (VOC) emission mitigation techniques for: compressors, hydraulically fractured oil well completions and associated gas from ongoing production, equipment fugitive leaks, liquids unloading, and pneumatic devices.

Contemporaneously, EPA proposed enhancements to its long-standing and successful voluntary program for methane emission reductions—the Natural Gas STAR Program. EPA initiated the Natural Gas STAR program in 1993 to encourage voluntary methane emission reductions in the oil and gas sector through the application of cost-effective technologies and improved work practices.

EPA seeks to enhance the existing voluntary program with 17 “Gas STAR Gold” methane reduction protocols and a heightened recognition incentive for participating companies.  There is a proposed Gas STAR Gold protocol for each of the source activities addressed by a technical white paper, with the exception of methane emissions from well completions following hydraulic fracturing.  Other proposed Gold STAR protocols address methane emissions associated with casinghead gas, flares, glycol dehydrators, hydrocarbon storage tanks, and pipelines.

To achieve Gas STAR Gold status, a participating company must certify that at least one of its facilities has implemented all applicable Gold STAR protocols. Companies with at least 90% of their facilities implementing all applicable Gold STAR protocols achieve “Gas STAR Platinum” status.  

While few doubt that EPA will pursue methane emission reductions via a regulatory framework, it is speculation only whether EPA’s approach will consist of methane reductions as: (1) a co-benefit of regulations aimed at VOC emissions; (2) direct regulation of methane emissions; or (3) a combination of these approaches. Regardless of the regulatory direction EPA takes, expanded and enhanced voluntary measures will certainly be part of its comprehensive strategy for reduced methane emissions.

EPA’s next step will be to announce the type of regulatory framework necessary to achieve White House goals, and explain how voluntary efforts fit into that framework. Although EPA aimed to announce that planned strategy by the end of the year, recent reports indicate that a January 2015 announcement is more realistic. It looks like we will have to look elsewhere for our leisure holiday reading. (Thanks are due to Karen Blakemore in our Baton Rouge office for all that is good and useful in this post.)

Time to Clean Up Our Dirty Food System

Posted on December 19, 2014 by Peter Lehner

For decades, environmental lawyers focused on cleaning up the air and water. We made tremendous progress. Today, in most of the country, our air is safer to breathe and our waters more fit for drinking and recreation than at the dawn of the environmental movement. 

But while our air and water got cleaner, our food system got dirtier during that same time period. Vast numbers of chemicals started to be used in the production and processing of food, with little thought given to the long-term impacts on human health and the environment. 

Safeguards have failed to keep pace with the introduction of new chemicals, and the powerful industries behind these products put tremendous pressure on federal agencies to limit health protections, putting our health and our environment at risk. 

Here are three ways to start cleaning up our dirty food system:

1. Close the Giant Food Additive Loophole

Hundreds, if not a thousand or more, chemical food additives used in processed and packaged foods that make up the majority of the American diet are never publicly revealed, much less reviewed for safety by the FDA. A recent report from NRDC explored this loophole in food safety law, known as GRAS, or “generally recognized as safe,” which allows chemical manufacturers to decide for themselves if their product is safe. In many cases, the FDA isn’t even notified when chemical additives enter our food supply.

Some additives which manufacturers claimed to be “generally recognized as safe” have been linked to fetal leukemia, testicular degeneration, and other adverse effects in human cell or animal tests. NRDC found these additives listed as ingredients in at least 20 food products.

The FDA can and should move now to end the conflict of interest in this system; and when the agency does review a manufacturer’s safety claims, their concerns should be made available to the public. Ultimately, Congress needs to close the GRAS loophole and reform outdated food safety law. 

2. Stop Risky Herbicide Used on Corn and Soy

The EPA recently approved the herbicide Enlist Duo, which is toxic to many plants, but not to a new strain of genetically modified corn and soy. Enlist Duo is likely to become the replacement for the weed-killer popularly known as Roundup, which became one of the most widely used herbicides in the nation after Monsanto developed genetically modified corn engineered to resist it. According to Monsanto, Roundup and its family of glyphosate-based herbicides are registered for use in more than 130 countries.   

But after 20 years of heavy use, Roundup is no longer effective against certain weeds, which have evolved a resistance to it.  The industry’s solution is to escalate: develop a new strain of GMO crops that can withstand a new, more potent herbicide.  

Enlist Duo is a combination of glyphosate, the active ingredient in Roundup, and another herbicide, 2,4-D. The EPA signed off on Enlist Duo despite ample evidence of the harm caused by 2,4-D, and without taking into account the last two decades of research on glyphosate. 

In recent years, glyphosate has emerged as a major contributor to the alarming decline of monarch butterflies, as it has decimated milkweeds across the Midwest, the only plant on which a monarch will lay its eggs. (Milkweeds have not evolved any resistance to glyphosate.) Emerging evidence suggests glyphosate may pose a threat to human health, with possible links to kidney disease, pre-term deliveries, attention deficit hyperactivity disorder, birth defects, and miscarriages. 

2,4-D has been associated with decreased fertility, higher rates of birth defects, and other signs of endocrine disruption. It’s been found in drinking water and can drift in the air over great distances, increasing the likelihood of human exposure far from the fields where it’s sprayed. 

The approval of Enlist Duo will expand both the geographic area and the length of the season during which 2,4-D would be used, potentially increasing the risk of exposure to 20 million children and women of childbearing age here in the U. S.

NRDC is suing the EPA for its approval of Enlist Duo.  

3. Stop Antibiotic Abuse in Livestock Industry

Eighty percent of the antibiotics sold in this country are for use in livestock and poultry, not for humans. And these antibiotics are largely used on animals that aren’t sick. 

To keep antibiotics effective, we need to change the way we raise animals for their meat. NRDC has been spearheading a campaign to raise awareness of antibiotic abuse in the livestock industry and pressing the FDA to take action. Recently, a number of major food companies have announced that they have or will transition away from antibiotics, including Perdue Farms, Chik-Fil-A, Panera Bread, Chipotle and others. 

These moves are encouraging and welcome but still voluntary, and not yet backed up by any increased transparency into antibiotic practices. And Foster Farms, the biggest chicken producer in the West, whose product was linked to a widespread Salmonella outbreak in 2013 and 2014, has yet to announce any changes in its antibiotics practices. 

Meanwhile, the latest FDA statistics show that antibiotic sales to the livestock industry continue to rise. Real change will come when we have truly effective safeguards—not the voluntary measures offered by the FDA, and not the similarly weak proposal recently (and commendably) vetoed by Governor Jerry Brown of California. 

Governor Brown has called stakeholders back to the table to find a more effective way for the industry to change its risky practices. It’s possible that California could lead the way forward on antibiotic stewardship. 

Superfund Rant For a New Congress

Posted on November 13, 2014 by Seth Jaffe

So the new Congress will be controlled by the GOP.  The House and Senate will consider various bills to rein in EPA authority.  Here’s one relatively modest suggestion for congressional consideration:  amend CERCLA to limit EPA’s authority to recover oversight costs.

How many of us in the private sector have been in meetings with EPA where EPA had more technical people in attendance than the PRPs who were performing the remedy?  How many of us have had clients receive oversight cost bills where the total amount of the oversight costs approached the amount spent on actually performing the remedy?  How many us have had oversight requests that have turned response actions into research projects?  All of this for a program that EPA’s own analyses always show to be at the bottom of the barrel when it comes to actual risks to the public.

Here’s the proposal.  I’m not suggesting that EPA have no authority to recover oversight costs.  Just limit it to 10% of the response costs incurred to actually design and implement the remedy.  Make it 15% if you want to be generous.

Mitch McConnell, are you listening? 

Looking ahead to EPA’s next GHG Permit Program: more 2/3rds solutions when Congress goes missing

Posted on July 10, 2014 by Michael R. Barr

Last Monday June 23,  it was the Supreme Court’s turn in the UARG case to decide whether EPA could “tailor” its climate policy to fit the PSD and operating permit programs in the current Clean Air Act.  Both the Court and EPA faced the issue without any precise guidance from the missing branch:  Congress.

As a result, yet another court – the DC Circuit – must next consider the proper remedy in the UARG case and, if past DC Circuit decisions are a sound guide, remand the matter back to EPA to take action consistent with the courts’ decisions.  The DC Circuit will almost certainly not tell EPA what it can do, nor should it tell EPA how to exercise its remaining substantial discretion.  The courts are only telling EPA what it cannot do in certain respects.  Thus, the courts’ guidance to EPA is limited.

EPA will retain considerable discretion when it tries again to regulate GHG emissions from major stationary sources and major stationary source modifications under titles 1 and 5 of the Clean Air Act.  EPA has loads of options, as many commenters pointed out during the prior EPA rulemaking.  The options may fit the current Clean Air Act to varying degrees.  In the words of the Supreme Court in the June 23 UARG decision, though, “Even under Chevron’s deferential framework, agencies must operate ‘within the bounds of reasonable interpretation.’” (J. Scalia for the Court, slip opinion at p. 16)  

EPA may try to avoid options that would be most vulnerable to challenge under the principles expressed by the Court in the UARG opinion.  One Court majority held that EPA lacked authority to “tailor” the Act’s numerical thresholds governing the PSD and operating permit programs.  A different Court majority upheld EPA’s BACT rules for GHGs.  Some commenters will undoubtedly urge EPA to continue its drive towards regulating GHGs under titles 1 and 5 of the current Clean Air Act.  But, EPA should re-solicit the broadest public comment and carefully consider all options, as the Supreme Court requires under the Chevron standard of judicial review.  After all, there will be a national election in 2016 and there will be a new Administration with its own views on the options.  If the current Administration wishes to leave a lasting legacy in this area, it would be well advised to act on the basis of the most solid record and adopt moderate, fully vetted polices that can survive.  As retiring Congressman John Dingell recently said in a farewell speech held by the National Press Club in Washington, D.C., “Compromise is an honorable word."  

Congress is very unlikely to provide any additional guidance in this area any time soon, though.  The nation will miss some basic policy decisions and compromises, such as:

Should the PSD and operating permit programs apply to GHGs?  How?

Which sources should be covered?  When?  With a phase-in?  Tied to what?

In the PSD program, can and should BACT work the same way for GHGs as for criteria pollutants?

In the operating permit program, when should sources have to add GHG provisions (since there aren’t yet any substantive requirements for the operating permits to pick up)?

What substantive requirement should EPA develop and for which sources?  When? E.g., should EPA set GHG emissions standards or other requirements for power plants and other source categories under section 111(d) of the Act, as EPA recently proposed?

What role(s) should state and local agencies and programs play?

In the 1990 Clean Air Act amendments, Congress resolved issues like these in the Act itself.  The leading precedent is title 4 – acid rain – where Congress even allocated emissions of SO2 by individual numbered electric power generators in named powerplants in named states.  Both houses and both parties held hands and made this deal under the Capitol dome – a deal which has resulted in a stunning and stable policy success.  The acid rain deal largely avoided the dilemmas that EPA and the courts now face in dealing with stationary source permitting under titles 1 and 5 of the Clean Air Act.  It seems most likely that whatever EPA does next under the current Clean Air Act will be challenged vigorously in court – again and again – until Congress can once again come together under the dome.