On October 17, 2014 environmental groups challenging the EPA’s authorization of Kentucky’s revised water quality standards for selenium moved for summary judgment, arguing that fish tissue analyses imposed under the revised standard could not properly measure water quality in streams that do not contain fish.
Prior to the revised standard, Kentucky set a water quality criterion for selenium at five micrograms per liter. Under that standard, discharges exceeding five micrograms per liter of selenium were deemed to violate Kentucky’s water quality standard for selenium. Under the revised standard, discharges exceeding five micrograms per liter trigger a requirement to measure the concentration of selenium in whole fish tissue or fish egg and ovary tissue. EPA approved the revised standard in 2013.
Selenium is a naturally occurring element that is essential for both humans and animals. While selenium can be toxic in high doses, effects on humans are rare and environmental exposure to selenium is not considered a problem for people. However, studies have shown that selenium can cause adverse effects to fish and other aquatic life as a result of its ability to accumulate in the aquatic food web. For example, selenium in slow-moving water can undergo a chemical conversion and be taken up by algae and bacteria in the water sediment. The resulting organic material is a food source for invertebrates, and fish that feed on these invertebrates may suffer from selenium poisoning if the levels are high enough. Selenium poisoning generally affects the reproductive systems of fish.
Although it is generally known that selenium can adversely affect fish, it is also known that selenium accumulation varies by the type of selenium at the source as well as the chemical and biological components of the receiving water. Therefore, simply increasing the amount of selenium in a particular waterway does not necessarily mean that fish or other aquatic life will be affected.
Because of the site-specific and complex nature of selenium accumulation, fish tissue sampling is generally considered a more scientifically sound measurement of the quality of a waterway than a simple measurement of selenium water concentration. Despite this, the environmental groups have complained that the fish tissue criteria will make it more difficult for their members to detect selenium violations.
The environmental groups have also complained that the fish tissue criteria cannot adequately protect waters that do not contain fish. However, the Kentucky Department of Environmental Protection has explained that, in waters where fish tissue cannot be obtained, compliance will be determined by the prior five micrograms per liter criteria. The environmental groups argue that such a condition is not legally enforceable under the revised standard.
This article was authored by Douglas Crouse, Jackson Kelly PLLC. For more information on the author, see here.
Since the unveiling of President Obama’s Clean Power Plan on June 2, 2014, a great deal of ink has been spilled explaining and debating the Plan and its implications. Notwithstanding the arguments for and against the Plan, some have now moved on to a necessary next phase—preparation. In a recently-released joint Discussion Paper by the West Virginia University Law Center for Energy & Sustainable Development, Downstream Strategies, and the Appalachian Stewardship Foundation, the groups examine the Clean Power Plan’s assumptions as they apply to West Virginia and propose one possible “Compliance Scenario” based on those assumptions.
I. Clean Power Plan Overview
The Clean Power Plan is described by EPA as a “common sense plan to cut carbon pollution from power plants.” EPA projects that under the Plan, the carbon dioxide emissions from existing power plants will be reduced an average of 30% from 2005 levels by the year 2030. EPA created individualized reduction goals based on each state’s 2012 emissions. Each state will be required to devise its own program to comply with its emissions budget.
EPA calculated these individual targets and interim benchmarks by applying the “best system of emission reduction” (BSER), which examined the cost of achieving such reductions, health and environmental impacts, and energy requirements for state. EPA also took into account four “building blocks” when computing the state goals. While the Building Blocks outline possible compliance scenarios, EPA maintains they are flexible guidelines rather than rigid rules.
The Building Blocks make the following assumptions:
The Plan sets out an interim compliance period and a final compliance deadline. The interim compliance period requires states to meet an average emission limit from 2020 to 2029. The final compliance period requires states to meet a final limit by 2030. The Plan sets out each state’s emission limit in the form of an emission rate of pounds of CO2 per megawatt hour of net electricity produced (lbs/MWh). The Plan also gives states the option of converting this rate-based limit into a mass-based limit of total emissions in tons. The Discussion Paper calculates that West Virginia would be required to reduce its CO2 emission intensity from 2,019 lbs/MWh to 1,620 lbs/MWh by 2030.
II. Discussion Paper Overview
The Discussion Paper is intended to be the first in series that will outline emissions compliance options available in West Virginia, and is intended to “generate feedback” and “stimulate dialogue” throughout the state. Its aim is to present “policy recommendations on steps West Virginia could take to comply with [the Clean Power Plan] while also capturing the economic, social, and environmental benefits of expanding the state’s energy economy.”
The Discussion Paper delves into the four Building Block assumptions as they apply to coal-dependent state like West Virginia. The conclusion the researchers come to is that, while compliance with the Clean Power Plan is possible, West Virginia will have to work harder to achieve smaller goals because it has fewer options to diversify. The Discussion Paper notes that West Virginia is the second-largest coal-producing state in the country, and almost three-fifths of the electricity generated in West Virginia is exported to surrounding states. A significant reduction in coal, whether statewide or across the nation, will obviously have important implications for the state. Still, the Discussion Paper concludes that if West Virginia embraces the flexible approach allowed by the Plan, it “can develop a state plan that puts the state on track to meet its emission limits while at the same time enhancing the social, economic, and environmental benefits of further integrating its energy efficiency, renewable energy, and natural gas resources into the state’s electricity sector.”
The Discussion Paper asserts that the best approach is to leverage the state’s strengths. The Discussion Paper says one such strength is the fact that non-coal energy resources are “relatively untapped,” such as natural gas and renewable energy like wind, solar, hydropower. Another strength would be to use the state’s coal resources in new ways, such as through co-firing natural gas with coal. Finally, a key element to any compliance plan will be to boost energy efficiency, which would include stimulating investments in energy efficiency and reducing CO2 emissions. Overall, the Discussion Paper stresses the need for cooperation between the state Legislature, the DEP, and the West Virginia Public Service Commission.
III. Particulars of Discussion Paper
The Discussion Paper details a “Compliance Scenario,” which gives specific suggestions on how to reach compliance by going through the Plan’s four Building Blocks as they relate to West Virginia.
The Discussion Paper based its work off several key figures:
A. Block 1: Improve Heat Rates at Coal-Fired Power Plants
Unlike EPA’s assumptions in Block 1, which state that coal-fired power plants can be made an average of 6% more heat-efficient, the Discussion Paper assesses West Virginia under a more conservative 3% efficiency increase. The Discussion Paper claims this is more realistic because it takes into account that some efficiencies being proposed by the Clean Power Plan have already been implemented in West Virginia. This echoes industry-wide concerns that coal plants have already implemented the most cost-effective efficiencies, leaving fewer ways in which to reach the 6% target.
Despite this more conservative number, there is little explanation as to what a 3%—or any percent—reduction would mean on a practical level for an individual plant.
B. Block 2: Re-Dispatch to NCGG
Block 2 is not addressed because it contemplates re-dispatch to existing NGCC plants, of which West Virginia has none.
C. Block 3: Increase Non-Hydropower Renewables and Preserve Nuclear
The Discussion Paper asserts that renewable energy resources accounted for 12.8% of total US electricity generation in 2013, with hydropower accounting for 56% of the renewable generation. In West Virginia, renewables account for only 4% of total electric generation.
The Compliance Scenario claimed there was a large market for growth in wind energy, and assumed West Virginia could reach a total wind generation capacity of 2106 MW by 2030, where it currently only has a wind generation capacity of 583 MW of wind capacity currently in operation. This would result in a 261% increase in wind capacity by 2030. This figure is on the low end of the National Renewable Energy Laboratory estimates, which estimated West Virginia’s wind energy potential to be between 1,883 and 2,772 MW.
The Compliance Scenario next assumes that West Virginia can integrate 410 MW of solar energy capacity by 2030, despite the fact that West Virginia’s total installed solar capacity is currently 1.9 MW. This would call for an increase in solar capacity of 21,479%—while this is not an insignificant number, the study cites to research showing that solar “is one of the fastest-growing energy sectors in the country,” and that West Virginia’s solar industry “has the potential for significant growth.”
These changes would result increase West Virginia’s total renewable output to 7%, which is still more conservative than EPA’s Building Block assumption, which states that West Virginia could grow its renewables to 14% of its total energy output.
D. Block 4: Improve End-Use Energy Efficiency
The Compliance Scenario concludes there could be big payoffs in Building Block 4. Where EPA estimates that West Virginia can reduce in-state electricity demand 10.71% by 2030, the Compliance Scenario assumes that West Virginia can achieve savings of 18% by 2030. The Discussion Paper claims that West Virginia utilities were ranked in the bottom five states for energy efficiency by the American Council for an Energy Efficient Economy (ACEEE) in its 2013 State Energy Efficiency Scorecard. The Compliance Scenario assumes energy savings could be achieved by adopting policies for binding energy efficiency resource standards. It touts energy efficiency as a “low-risk, low-cost energy resource that provides direct savings to consumers, encourages investment across other sectors of the economy, displaces the need for costly investments in new energy supply infrastructure, creates new employment opportunities, and reduces emissions of CO2 and other harmful pollutants.”
E. Other Considerations
The Discussion Paper also looks at additional sources of energy savings outside those contemplated by the Building Blocks. Some of these other considerations include:
The Discussion Paper states that the Compliance Scenario could result in a 2030 emission rate of between 1,620 lbs/MWh and 1,717 lbs/MWh. Overall, even though the Compliance Scenario is less aggressive than EPA under Building Blocks1 and 3, it claims to make up for these differences by being more aggressive under Block 4 and by looking to “other” areas of compliance not incorporated into the Building Blocks such as hydropower, natural gas plants, combined heat and power facilities, and dispatch of existing coal generating units.
IV. Policy Recommendations and Conclusions
Finally, the Discussion Paper notes that there are many avenues available to the state in order to accomplish its goals. The Discussion Paper makes policy recommendations based on the fact that state plans must demonstrate how the state will achieve compliance.
Policy Recommendation 1: Adopt an Energy Efficiency Resource Standard
The Discussion Paper asserts West Virginia utilities do not currently offer West Virginians the highest level of energy efficiency service. As such, the Discussion Paper recommends the West Virginia legislature pass an energy efficiency resource standard (“EERS”) bill that would regulate the level of energy efficiency utilities must provide to their customers. One such bill was considered in 2013 but it did not pass. The Discussion Paper recommends adopting a revised version of this bill, saying that it “would provide tangible economic benefits and a low-cost emission reduction measure that could be demonstrated in a state plan to help the state meet its CO2 emission reduction requirements under the Clean Power Plan.”
Policy Recommendation 2: Require Binding Renewable Energy Targets
West Virginia has in place an Alternative and Renewable Energy Portfolio Standard (“AREPS”) that requires utilities to supply customers with a certain percentage of energy from alternative or renewable sources. The Discussion Paper considers the commitment to renewables to be non-binding, however, because the required percentages can be supplied solely through fossil-fuel-derived alternative sources rather than renewables. The Discussion Paper recommends that Legislature revise AREPS to include binding targets for the development of new renewable energy, such as wind, solar, hydropower, and biomass sources.
Policy Recommendation 3: Encourage Use of Natural Gas
The Discussion Paper recommends taking advantage of West Virginia’s natural gas capabilities by building NGCC plants, building new combined heat and power facilities, and co-firing existing coal plants with natural gas when possible. It states that integrating of natural gas would help diversify West Virginia’s electric system, drive down electricity costs, create additional export opportunities for West Virginia-produced natural gas—all while helping the state comply with the Clean Power Plan.
Policy Recommendation 4: Require “Integrated Resource Planning” for Utilities
The Legislature passed a bill in 2014 that requires utilities use “integrated resource planning.” IRP requires utilities to evaluate resource alternatives for meeting projected electricity demand, including new generating capacity, power purchases, energy conservation and efficiency, cogeneration and district heating and cooling applications, and renewable energy resources. Under IRP, conservation and energy efficiency should be given the same consideration as the more traditional alternatives. The Discussion Paper recommends that the Public Service Commission draft a “robust integrated resource planning requirement will ensure that energy efficiency, renewables, natural gas, coal, and other resources are evaluated on equal footing . . .” and “provide an important framework for evaluating and securing the lowest-cost compliance options under the Clean Power Plan.”
The Discussion Paper says these recommendations will “put the state on a path toward compliance with the Clean Power Plan, while at the same time providing consumers reliable electricity service at reasonable costs, growing the state’s energy economy, and reducing the impact of energy production on the environment.”
This article was authored by Jennelle Arthur, Jackson Kelly PLLC. For more information on the author, click here.
Recent news reports contained stories about two new papers on the possible effects of particulates generated by “mountaintop” mines in central Appalachia. One story discussed a paper which compared the effects of particulates within a mile of a southern WV mine with the effects of particulates from a non-mining area. The authors found that mining-related particulates “did not indicate tumor initiation” but did contribute to tumor progression more than did non-mining dust. The authors determined that the two largest components of the mining dust were silica and molybdenum, and they exposed cells to those individual substances as well. The molybdenum, but not the silica, apparently also promoted tumor progression. The paper, coauthored by Michael Hendryx, is available at http://pubs.acs.org/doi/pdfplus/10.1021/es504263u.
A layman’s read of the paper raises one issue, though. The authors contend that the contents of the particulate near the mines were, by weight, 28% molybdenum. In prior papers by some of the same authors, molybdenum is not mentioned at all. Instead, there the authors noted the dominance of things such as silica and sulfur, along with the presence of other substances such as aluminum and iron. It will be interesting to review the underlying data to see how they analyzed the contents of the particulate.
A second announcement, released by the Coal River Mountain Watch (“CRMW”), claims that scientists with the USGS have submitted a paper on their work to a journal for publication. According to the CRMW, that paper concludes that communities near mines have elevated levels of particulates compared to non-mining communities. This work appears to stem from airborne dust monitoring and speciation that the USGS reportedly conducted several years ago in southern West Virginia and which may have been discussed in a paper released this summer entitled “Atmospheric particulate matter size distribution and concentration in West Virginia coal mining and non-mining areas.” A news story from July of 2014 indicated that the USGS had abandoned this work in late 2013.
Another recent article confirmed that one of the principal USGS investigators into the possible health effects of surface mining had left his mining work behind and started work on the dangers of air emissions from waste ponds associated with the gas industry in West Virginia.
The release from the CRMW, apparently made in advance of publication of the article by USGS personnel, suggests that advance copies of the material have been deliberately provided to anti-mining groups in an effort to pressure the administration to re-fund USGS investigations into the potential health effects of mining. Both the CRMW and OVEC are actively campaigning to have the Administration continue studies into the health effects of surface mining.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, click here.
On October 4, 2014, the PA DEP published two draft technical guidance documents for comment: “Policy for Coordinating Immediate Responses and Final Remediation of Spills and Releases” and “Standards and Guidelines for Identifying, Tracking, and Resolving Oil and Gas Violations.” Comments for both are due by November 3, 2014.
Policy for Coordinating Immediate Responses and Final Remediation of Spills and Releases:
PA DEP ID: 260-0500-001 (New Guidance).
This new guidance summarizes how the Department oversees immediate responses and final remediation of spills and releases of regulated substances onto soils. It applies to releases of regulated substances as defined in the Land Recycling and Environmental Remediation Standards Act (35 P.S. §§ 6026.101 – 6026.909). The purpose of the policy is to facilitate the consistent investigation of and the response to spills and to coordinate immediate response needs with final remediation endpoints.
Of note, the guidance points out that most cases involving small spills can avoid municipality and newspaper notification requirements if the remediator can promptly excavate the contaminated soil, sample to demonstrate attainment, and submit the final report within 90 days.
Written comments should be submitted to Molly Adams, Bureau of Environmental Cleanup and Brownfields, P. O. Box 8471, Harrisburg, PA 17105-8471, (717) 787-1566, email@example.com.
Standards and Guidelines for Identifying, Tracking, and Resolving Oil and Gas Violations:
PA DEP ID: 550-3000-001 (Substantive Revision).
Once finalized, this document will replace the previous policy, ‘‘Compliance Monitoring of Oil and Gas Wells and Related Facilities and Activities,’’ that was issued in 2005. The revisions reflect changes to the organizational structure of the agency and update the policies and procedures to reflect current oil and gas development activities in Pennsylvania. This guidance provides direction to PA DEP’s O&G management staff in determining what courses of enforcement to pursue to resolve violations and bring about compliance, and to provide advisory information to the regulated industry. It applies to all conventional and unconventional O&G operators conducting business in Pennsylvania.
The policy sets out basic principles of enforcement, including minimum response for violations; a process for enforcement, resulting in corrective action or penalties; and enforcement priorities. The policy also includes inspection guidelines for the staff, with guidance on coordinating with other departments or agency programs.
Written comments should be submitted to John Ryder, Department of Environmental Protection, Bureau of District and Oil and Gas Operations, Rachel Carson State Office Building, 15th Floor, P. O. Box 8765, Harrisburg, PA 17105-8467, firstname.lastname@example.org with the subject line “Comments on Standards and Guidelines for Identifying, Tracking, and Resolving Violations.”
This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author, click here.
There were several decisions of import recently applying both Sections 404 (regulating discharges of “fill material”) and 402 (regulating NPDES permits for discharges of non-fill material) of the Clean Water Act:
1. Section 404 Cases: Pebble Challenge is Premature; EPA’s Veto of Spruce Permit Uphel
By order dated September 26, 2014, a federal district court in Alaska dismissed as premature a challenge by Pebble Limited Partnership to EPA’s announced initiation of “veto” proceedings under Section 404(c) of the Clean Water Act.
Pebble holds the rights to a large copper, molybdenum and gold deposit in Alaska. It has spent $150 million studying the environmental impacts of opening a mine and recently announced plans to submit applications for the necessary permits—including an application to the Corps for a Section 404 permit to discharge fill material. Before it submitted the application, however, EPA announced plans to initiate proceedings under Section 404(c) to “prohibit the specification” of defined areas for the disposal of fill material.
Section 404 gives the Corps of Engineers the right to issue 404 permits, but that right is subject to EPA’s so-called “veto” authority under 404(c). Section 404(c) provides that EPA may “prohibit the specification of any defined area as a disposal site whenever it determines . . . that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife or recreational areas.” In 1979, EPA issued rules stating that EPA could use its authority to “prohibit the specification” of a water for the disposal of fill material even before the Corps had considered or approved an application for a fill permit. 40 C.F.R. 231.1(a). While Pebble wanted to argue that EPA could not act in advance of a permit application to the Corps, this rule presented a significant problem—the rule had not been challenged when issued in 1979, and any direct claim that EPA lacked authority to act in advance of a 404 permit application would be viewed as an untimely facial challenge to the rule.
To avoid a claim that it was making an untimely challenge to EPA’s 1979 rule, Pebble argued that EPA’s decision to initiate the 404(c) action was a final agency action that was subject to immediate judicial review. They argued that the decision to start “veto” proceedings was a final agency decision on the scope of EPA’s authority under its “veto” rules. The Court rejected this contention as a thinly disguised attack on the rule itself and continued by noting that EPA’s decision to initiate 404(c) proceedings was NOT a final action. Instead, because a 404(c) action is not final until it undergoes a lengthy public notice, comment and hearing process, the Court found that EPA had only initiated the proceedings, but had not reached a final decision that could yet be challenged in federal court.
The decision should not surprise anyone, but is evidence of the extent to which EPA is now willing to use its considerable but infrequently used § 404(c) authority. This will be 14th time EPA has used this authority since passage of the modern Clean Water Act in 1972, and the second time for the Obama administration. The 13th time was in vetoing the permit issued by the Corps for Mingo Logan Coal Company’s “Spruce Mine” in West Virginia. Ironically, there the initial challenge was the EPA could not exercise its 404 “veto” authority AFTER the Corps had issued a 404 permit. There, the EPA waited over two years after the Corps had issued the 404 permit (and after a change in administration) to initiate its action.
By order entered September 30, 2014, the federal District Court for the District of Columbia, a court that had once “smacked down” EPA’s post-permit “veto” of Mingo Logan’s Spruce Mine § 404 permit, changed course and upheld EPA’s decision to prevent further filling at the mine.
The Corps issued a 404 permit to Mingo Logan in early 2007 after the permit underwent the most detailed environmental review by the Corps (and EPA) of any coal permit in the east. In mid to late 2009, after the Obama administration took office, EPA took several steps to prohibit new mines. First, in the spring of 2009, it issued its later discredited “enhanced coordination” procedures by which EPA re-inserted itself into the review of pending Corps applications. It did so because it had allowed its time to comment on the applications to lapse under the procedures devised by the Corps and EPA. And then in the late summer of 2009, it asked the Corps to suspend or rescind the previously-issued Spruce permit, claiming that new or evolving information previously unavailable had led it to conclude that the permit would have unacceptable adverse effects. When the Corps declined, EPA struck out on its own and started a 404(c) veto. In January 2011, EPA completed its proceedings and announced that it was prohibiting Mingo Logan from discharging fill material in several of the streams it was authorized to fill.
EPA’s concerns as expressed in 2009 were solely with the downstream effects of conductivity—effects that were already considered and authorized by Mingo Logan’s NPDES permit. However, to address comments that it could not use effects regulated by the NPDES program to veto a 404 permit, EPA’s final decision also claimed that among the unacceptable effects were those within the fill area itself. The effects it identified were on non-endangered aquatic insects and bird species never previously identified in the area—none of which depended on new information or addressed impacts not fully realized before the 2007 permit issuance.
Mingo Logan challenged EPA’s action in federal court in Washington. It argued both that EPA could not act after the Corps had issued a permit and that EPA’s decision was otherwise unlawful and unreasonable. In 2012, the district court ruled that EPA’s action was untimely, and that the Clean Water Act prohibited EPA from using its 404(c) authority after the Corps had finally issued a permit. The D.C. Circuit Court, however, reversed that decision in 2013, ruling that the language granting EPA the right to act “whenever it determines” that a discharge will have an unacceptable impact is a grant of authority to act “at any time.” The appeals court sent the case back to the district court to review the remaining challenges by Mingo Logan.
The September 30 decision rejects the remaining challenges by Mingo Logan. Among the new rulings by the Court were: 1) despite comments in EPA’s regulatory preamble that it should not use its 404 authority after a permit is issued unless there is new information not previously considered, there is no express requirement that EPA rely on new information; 2) applying the high level of deference owed to EPA on factual issues, EPA’s conclusion that there would be unacceptable impacts within the fill area itself is supported by the record; and 3) the EPA can rely on downstream water quality impacts in the exercise of its 404 authority even though those water quality impacts are the subject of an NPDES permit issued under Section 402 of the permit.
2. Section 402 Citizen Suit
In June 2014, a federal court in West Virginia ruled that discharges of “conductivity” from two mines in West Virginia were liable under the Clean Water Act for violating the State’s “narrative” water quality standard. The NPDES permits at issue did not contain numeric limits on conductivity, but the Sierra Club alleged that the permittees were violating a requirement that they comply with all water quality standards. The case was bifurcated into liability and remedy phases. The June order only resolved the liability phase and is, therefore, not a final and appealable order absent approval from the courts. The district court has agreed that its ruling may be appealed immediately. On September 21, the mine operators applied to the Fourth Circuit for permission to advance an immediate appeal.
By order of September 30, 2014, the Court denied Fola’s motion for a directed verdict. This is another Clean Water Act citizen suit alleging that discharges of conductivity by a mine operator are violating the State’s narrative water quality standard. In these cases, the Plaintiffs rely heavily on the EPA Conductivity “Benchmark” as evidence that conductivity can cause adverse effects to aquatic insects.
This case was tried in August. At the end of the Plaintiffs’ case, the mine operator moved for a directed verdict. It argued that Plaintiffs had not proven that the ionic mixture of Defendant’s discharges was sufficiently like that studied in the Benchmark to warrant the use the Benchmark as evidence of causation. It also argued that Plaintiffs must prove that the violation of the narrative water quality standard is caused by the discharge of a “pollutant,” but that conductivity is only a characteristic of many pollutants and is not itself a pollutant that is causing impacts to aquatic life. The Court ruled that the waters are sufficiently like those used in the Benchmark to consider it as evidence. It also ruled that even though conductivity is not a “pollutant,” it is a reasonable proxy for specific ions known to cause violations of the narrative water quality standard.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, click here.
On September 3, 2014, the Ninth Circuit issued its ruling in Alaska Community Action on Toxics v. Aurora Energy Services, No. 13-35709 (9th Cir. 2014). See http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/03/13-35709.pdf for full opinion. The three judge panel overturned the district court’s finding that the defendant’s discharges of coal into Alaska’s Resurrection Bay were covered by EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity.
A coal barge loads coal at the Seward, Alaska Coal Loading Facility operated by Alaska Railroad and Aurora Energy Services. Photo courtesy Alaska Railroad Corporation, Facility Facts (2/17/2010).
The Ninth Circuit’s decision was based on the language of the General Permit rather than a differing view from that articulated by the District Court of the scope of CWA § 402(k)’s permit shield. First, the Court reiterated the two-prong test set forth in Piney Run Pres. Ass’n v. Cnty. Comm’rs, 268 F.3d 255, 259 (4th Cir. 2001): an NPDES permit shields a permittee from liability under the CWA as long as (1) the permit holder complies with the express terms of the permit and with the Clean Water Act's disclosure requirements and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was issued.
The Court began its analysis of the first prong by examining Section 2 of the General Permit, “Control Measures and Effluent Limits.” Part 188.8.131.52 of the Permit states: “You must eliminated nonstormwater discharges not authorized by an NPDES permit.” Part 184.108.40.206 goes on to refer to “Part 1..3 for a list of non-stormwater discharges authorized by this permit.” See Fig. 1.
Part 1.1.3 lists eleven categories of non-stormwater discharge. The Court analyzed the list of exceptions to the general prohibition against non-stormwater discharges in the context of the permit as a whole. The Court pointed to the language associated with Part 1.1.3—“non-stormwater discharges authorized under this permit”—as evidence that those eleven categories were the only non-stormwater discharges authorized. See Fig. 2.
Aurora pointed to the fact that Part 8 contained an additional authorization for stormwater discharges from timbering operations as evidence that the list was not intended to be exclusive. The Court found that, while the list in Part 1.1.3 may not have been an exclusive list of permissible non-stormwater discharges, the structure of the General Permit counseled against finding that it authorized Aurora’s coal discharges. The Court reasoned that, if the General Permit had simply stated that permittees must eliminate non-stormwater discharges not authorized by an NPDES permit, then there may have been some ambiguity as to which non-stormwater discharges were authorized. However, the very next sentence referred permittees to Part 1.1.3 for a list of non-stormwater discharges excepted from this general prohibition.
The Court found the explicit reference to excepted non-stormwater discharges, taken together with the lack of any specific carve-outs from the general prohibition for Aurora’s industry or discharge-type, to be conclusive evidence that the General Permit was not intended to cover Autora’s non-stormwater coal discharges. The Court concluded that “the express terms of the General Permit prohibit defendants’ non-stormwater coal discharges, thus defendants would not be shielded from liability.”
The Court’s holding hinged upon the specific authorization of the Multi-Sector General permit rather than its construction of the permit shield provided by CWA § 402(k) or a novel interpretation of the “reasonable contemplation” prong of the Piney Run test. In fact, the Court’s finding that Aurora’s discharge was specifically prohibited by the General Permit rendered a discussion of the “reasonable contemplation” test unnecessary. Although the Court took a more narrow view than the District Court of the authorization provided by EPA’s Multi-Sector General Permit, its opinion does not diminish the permit shield protection afforded to discharges authorized under valid general permits. Permittees who comply with applicable disclosure requirements continue to be shielded from CWA liability where their discharges are not specifically prohibited by the permit in question and where the pollutants in their effluent were reasonably contemplated by the permitting authority when the permit was issued.
WVDEP has issued a draft Interpretative Rule 47 CSR 62 to aid in compliance with the Aboveground Storage Tank Act’s requirements for the January 1, 2015 due date for submittal of the Initial Inspection and Certification Reports for Aboveground Storage Tanks (AST) pursuant to W.Va. Code § 22-30-9. See: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/2014-09-09InterpretiveRulereInspectionsSPRPs.pdf
Comments may also be emailed to WVDEPTankRules@wv.gov. The comment period will close after a public hearing that will be held at 6:30 p.m. on October 9, 2014, at the WVDEP Headquarters. Legislative rules to be promulgated in 2015 will supersede this Interpretative Rule.
The description of Level 1 AST, Level 2, AST and Level 3 AST is in the companion article on the AST Spill Prevention and Response Plans. See http://eem.jacksonkelly.com/2014/09/december-3-2014-due-date-for-aboveground-storage-tank-ast-spill-prevention-response-plan-wv-dep-clar.html
The initial inspection and certification requirements for each AST Level are as follows:
Level 1 ASTs, the initial inspection of each tank shall be performed by a qualified professional engineer; or by a qualified person working under the direct supervision of a professional engineer; or by an individual certified to perform tank inspections by the American Petroleum Institute (API); or by a person certified to perform tank inspections by the Steel Tank Institute (STI). The inspection shall be certified by the professional engineer (for those inspections conducted by a professional engineer or a qualified person working under the direct supervision of a professional engineer) or by the API certified inspector or by the STI certified inspector on a form prescribed by the Secretary and submitted to the Secretary on or before January 1, 2015.
Level 2 and Level 3 ASTs, the initial inspection of each tank shall be performed by any of the persons listed above; by the owner or operator of the AST; or by any person designated by the owner or operator of the AST. The inspection shall be certified as set forth above (if the inspection is conducted by a person listed in that section) or by the owner or operator of the AST (if the inspection is conducted by the owner or operator or a person designated by the owner or operator) on a form prescribed by the Secretary and submitted to the Secretary on or before January 1, 2015. Regardless of tank classification (i.e., Level 1, Level 2 or Level 3), the inspections shall be conducted in accordance with the industry standard appropriate to the tank or tank facility. Appendix A to the regulations sets forth the various industry organizations and their contact information (i.e., American Petroleum Institute, American National Standards Institute, Steel Tank Institute, American Society of Mechanical Engineers, etc. Appendix B to the Interpretative Rule provides a checklist, summarized below:
Initial Checklist for Inspection and Certification
See August 25, 2014 Jackson Kelly article for overview of WV AST Act including:
Definition of ASTs and excluded sources
Definition of “Public Water System” and “Zone of Critical Concern”: relative to ASTs requiring individual NPDES Permit applications.
For more information contact Barbara Little.
WVDEP has issued a draft Interpretative Rule 47 CSR 62 to aid in compliance with the Aboveground Storage Tank Act’s requirements for the December 3, 2014 due date for submittal of Spill Prevention Response Plan for Aboveground Storage Tanks (AST) pursuant to W.Va. Code § 22-30-9. See: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/2014-09-09InterpretiveRulereInspectionsSPRPs.pdf
Comments may also be emailed to WVDEPTankRules@wv.gov. The comment period will close after a public hearing that will be held at 6:30 p.m. on October 9, 2014, at the WVDEP Headquarters. Legislative rules to be promulgated in 2015 will supercede this Interpreatative Rule.
ASTs are divided into three levels, 1, 2 and 3 with Level 1 having the most stringent level of control. If a facility has an existing compliant federal Clean Water Act SPCC Plan, or a federal Oil Pollution Act Plan or Integrated Response Plan, combining multiple plan elements, these are very likely to satisfy the WV AST Spill Response Plan requirements, but WVDEP has retained the authority to require more information.
WVDEP has established classifications for ASTs as Level 1, 2, or 3 with Level 1 ASTs having the most stringent level of controls for inspections and Spill Response Plans. Levels are defined as follows:
Level 1 AST applies automatically to the following :
The problem with automatic criteria 1 is that if registration is not made well prior to the October 1, deadline it is unlikely that WVDEP will have time to determine and notify the applicant that based on the latitude/longitude information provided, that an AST is located within a zone of critical concern, well head protection area, or groundwater intake area. The applicant will know if either criteria 2 or 3 are met. Immediate registration is therefore needed. See companion article at http://eem.jacksonkelly.com/2014/08/upcoming-deadlines-for-aboveground-storage-tanks.html.
If none of these “automatic standards” are met the WVDEP still may determine an AST meets the following Level 1 General Standard and provide notice to the registrant:
An AST that is determined by the Secretary to have the potential for high risk of harm to public health or the environment due to its contents, size or location. The Secretary, inhis or her discretion, may consider factors including, without limitation, tanks that contain substances that are on the federal Environmental Protection Agency’s “Consolidated List of Chemicals Subject to the Emergency Planning and Community Right to Know Act (EPCRA),CERCLA, and § 112(r) of the Clean Air Act (CAA)” (known as “the List of Lists”) regardless of the AST’s location..
“Level 2 AST” means an AST that is determined by the Secretary to have the potential for lesser risk of harm to public health or the environment than a Level 1 AST due to its contents, size or location (i.e., an AST located in an isolated area with respect to public water systems, waters of the State or populated locales). An AST that does not qualify as either a Level 1 AST or a Level 3 AST is a Level 2 AST. WV DEP will finally determine if an AST is Level 2 . However, for the December 3, 2014 filing, if a tank does not fit the three Level 1“automatic” criteria, above, or it is not a “Level 3 AST” as described below, the registrant may assume the AST is Level 2, unless notified otherwise by WVDEP.
“Level 3 AST” means an AST that is determined by the Secretary to have the potential for low risk of harm to public health or the environment due to either its contents:
AST Spill Response Plans are to be site specific to the AST location and the Act states that the plans are to be developed in consultation with the Bureau of Public Health, county and municipal emergency management agencies. WVDEP has clarified that for the Spill Response Plans due December 3, 2014, it is sufficient to send copies of the plans to the Bureau of Public Health and local emergency management agencies and allow opportunity to comment; there is no need to obtain an affirmative approval from the Bureau or local emergency management agencies by the December 3, 2014 deadline for submission to WVDEP. To comply with this advance notice, sources should complete plans as soon as possible and transmit them to the Bureau of Public Health, Office of Environmental Health Services, Room 702, 350 Capitol Street, Charleston WV 25301. A listing of local emergency management contacts by County is available at: http://www.dhsem.wv.gov/SERC/Documents/LEPC%20Web%20Addresses%202014.pdf
Level 1 ASTs : The Spill Prevention Response Plan shall:
Note if an AST is Level 1, but also has a CWA SPCC Plan or Oil Pollution Act Coast Guard Plan it is likely that these plan meets the above requirements, but the plans should be reviewed in light of the foregoing elements.
Level 2 AST:
Same as Level 1 OR
If the AST location has a Groundwater Protection Plan required by a permit issued pursuant to WV Surface Coal Mining , Quarry Mining, Oil and Gas E & P, Water Pollution Control, Solid Waste or Hazardous Waste Management Acts, the owner or operator may submit to the Secretary a certification that such plan is current and list the applicable permit number(s) corresponding with the plans.
Level 3 AST:
See August 25, 2014 Jackson Kelly E & E Monitor article, for overview of WV AST Act including:
Definition of ASTs and excluded sources
Definition of “Public Water System” and “Zone of Critical Concern”: relative to ASTs requiring individual NPDES Permit applications.
For more information contact Barbara Little.
The U.S. Environmental Protection Agency (EPA) must be feeling pressure in response to the proposal it announced in March to re-define the term “waters of the United States.” On September 8, 2014, the agency posted on its website a “fact sheet” entitled “Ditch the Myth” in which it denies doing what the regulated community ardently believes: that EPA is seeking through a regulation the basis to claim authority over any moist plot of land. Its explanation for why this fear is unfounded will not reassure anyone. In fact, the announcement coincided with a report from its Science Advisory Board (SAB) which provides the veneer of scientific authority that EPA asserts for every action it takes. Perhaps unintentionally, the SAB report also substantiates the very fears that critics of the proposed rule have expressed.
First, EPA is less than honest when it claims that intermittent (now being identified as “seasonal”) or ephemeral (after rainfall) streams “have been protected by the Clean Water Act (CWA) since it was passed in 1972.” This is blatantly false. EPA has always been coy about the limits of its authority, and has sometimes been reluctant to assert it notwithstanding a basis in its regulations to do so. Historically, the Army Corps of Engineers, which regulates the dredge and fill program under the CWA, eschewed jurisdiction over streams or channels in which there was either a negligible consistent or ephemeral flow. Any federal authority over water has always existed under either of two provisions of the Constitution: navigation or the Commerce Clause. The latter provision has been the basis for the Congress and EPA in the CWA to identify a uniquely federal interest in matters of water quality. EPA admits as much in its fact sheet when it writes, “Everyone lives downstream . . . and are all impacted by the pollution and destruction that happens upstream.”
Second, the agency’s assertion that the “proposed rule does not protect any types of water that have not historically been covered” and “reflects the Supreme Court’s more narrow reading of jurisdiction” is, to put it generously, misleading. The reality is that there are at least three theories expressed by the Supreme Court in Rapanos v. U.S, 547 U.S. 715 (2006) about the ability of the federal agencies to regulate a specific stream. Four existing members of the Court (Chief justice Roberts, and Justices Scalia, Alito and Thomas) have identified some relatively permanent surface water connection as providing a lawful basis for regulation. Two members (Justices Breyer and Ginsburg and presumptively Sotomayor and Kagan) are untroubled by any Commerce Clause restrictions on the question. Justice Kennedy has clearly signaled in Rapanos that a Commerce Clause boundary exists. Unlike the plurality opinion in the case written by Justice Scalia, however, Kennedy constructed a wholly different test – the significant nexus – which has been nearly impossible to articulate and which both the EPA and Corps seek to exploit in the proposed rulemaking.
If this seems exaggerated, look carefully at the recent report of the Science Advisory Board which EPA convened to bless its conclusions. Ever since EPA tipped its hat in 2013 that it was considering a revision to its definitional regulations, it has labored to find significance in all possible manner of hydrologic connections. It has continued to rely on traditional indicia of significance such as the “Ordinary High Water Mark” that the Corps traditionally relied upon to determine its jurisdiction over traditionally navigable waters (and which Justice Kennedy eschewed as a reliable test for the purpose of the CWA). EPA has sought to justify all possible tests, however, under the cloak of science and the ability of a hydrologist to find a molecular connection between one source of water and another. So one should not be surprised to learn that its science advisors are concluding that surface features such as swales, which only a few years ago could not be jurisdictional because they lack an OHWM, should be. Why? Because they are hydrologically connected. So when EPA now claims that only a small segment of diffused waters or ephemeral streams fall into a gray area of questionable jurisdiction, do not be deceived as to how that question ultimately will get decided. And when EPA states in its “Ditch the Myth” fact sheet that the proposed “rule will not be finalized until the scientific assessment is finalized,” do not be deceived. The verdict is already in.
Finally, the agriculture industry must be the source of alarm that caused EPA to publish “Ditch the Myth”. The reason is that of the 23 “myths” that EPA attempts to refute, seven responses (Orwellian “truths”) specifically mention agriculture or farms and at least three others impliedly identify agricultural practices. As one statement illustrates, farmers have reason to worry. EPA states, “All historical exclusions and exemptions for agriculture are preserved.” In fact, the CWA does provide an agricultural exemption for obtaining an NPDES permit at §402 (l)(1), 33 USC at §1342 (l)(1). Congress created an exemption for “discharges composed entirely of return flows from irrigated agriculture [.]” This exemption will not necessarily cover the Midwestern farmer who drains his fields by means of tiles and a drainage ditch. It certainly did not protect the Hardy County, West Virginia poultry farmer who had to defend an enforcement action brought by EPA in 2012. That case is currently in front of the United States Court of Appeals for the Fourth Circuit on appeal. Given this Administration’s willingness to do what it wants, the exemption is a weak shield for farmers.
Responding to the concerns surrounding EPA’s efforts, the U.S. House of Representatives recently passed the “Waters of the United States Regulatory Overreach Act of 2014, H.R. 5078, which would prohibit EPA and the Army Corps of Engineers from adopting their proposed definition of “waters of the United States.” This bill enjoyed some measure of bipartisan support, with 35 Democrats joining 227 Republicans voting for the bill.