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EPA Finalizes Water Transfer Rule - Clean Water Act Permits not Needed for Most Inter-watershed Transfers

     EPA issued a rule on June 13, 2008 (73 Fed. Reg. 33697) clarifying that transfers of water from one watershed to another without subjecting the transferred water to intervening industrial, municipal or commercial uses do not subject those transfers to NPDES permitting requirements. 

     According to the rule, water transfers occur routinely in many different contexts across the United States.  These transfers occur through tunnels, channels or pumps for such uses as providing public water supply, irrigation, power generation, flood control and environmental restoration.  The question of whether or not an NPDES permit is required for water transfers arose because the transfers of water from water body to another typically move pollutants from the donor water to the receiving water.  The rule is seen as a response to the U.S. Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004). 

     There, the Supreme Court vacated an Eleventh Circuit decision which held that a Clean Water Act permit was required for transferring water from one navigable water to another.  The Court remanded the case for further fact finding as to whether the two waters in question were “meaningfully distinct.”  If they were not, an NPDES permit would not be required.  The Court declined to resolve the question of whether water transfers require NPDES permits when water bodies at issue are meaningfully distinct.  EPA’s rule concludes that water transfers from one water body to another do not result in the “addition of a pollutant,” but rather were intended by Congress to be regulated by state water resource management agencies and state non-NPDES authorities rather than the permitting program under Section 402 of the Clean Water Act.

     This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

Joint Science Academies Issue a Statement on Climate Change and Call for Carbon Capture and Sequestration Projects

     On June 10, 2008, the science academies of the G8 countries (Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States), plus the science academies of five others (China, India, Brazil, Mexico and South Africa) issued a statement urging prompt action by the G8+5 leaders in order to limit the threat of climate change.  Acknowledging that progress in reducing global greenhouse gas emissions has been slow and that some of the consequences are now inevitable, the science academies urge the leaders “to make maximum efforts” to halve global emissions by 2050. 

     The science academies specifically endorse the use of coal coupled with carbon capture and sequestration as a mitigation strategy:  “Technologies should be developed and deployed for carbon capture, storage and sequestration (CCS), particularly for emissions from coal which will continue to be a primary energy source for the next 50 years for power and other industrial processes.  G8+5 economies can take the lead globally to further develop CCS technologies.  This will involve governments and industry working collaboratively to develop the financial and regulatory conditions needed to move CCS forward and international coordination in the development of demonstration plants.”  The statement calls on the G8+5 governments to agree, by 2009, to a timetable, funding and coordinated plan for the construction of a “significant number” of CCS demonstration plants.

     Noting that mitigation, while essential, is not sufficient by itself, the joint statement discusses the need for both mitigation and adaptation if the worst impacts of climate change are to be avoided.  The statement identifies the need for a strategic approach to adaptation based upon the principle of sustainable development and calls on governments and businesses to develop adaptation solutions and avoid investments in technologies and infrastructure which fail to take climate change into account.

     The 2008 G8 Summit takes place in Hokkaido, Japan, on July 7-9, 2008.  Climate change in general, and CCS in particular, will be high on the agenda.  More to come.

     This article was authored by Whitney G. Clegg, Jackson Kelly PLLC. For more information on the author see here.

Federal Judge in Kentucky Declines to Stay Challenge to New Version of Nationwide Permit 21 While Appeal Concerning Old Version is Pursued

     In Kentucky Riverkeeper, Inc. v. Corps of Engineers (E.D. Ky.), environmental groups had challenged the 2002 version of Nationwide Permit 21 issued by the Corps of Engineers for fills associated with coal mining activities.  Nationwide Permits are permits issued by rule for categories of activities for up to five years.  The 2002 version of NWP 21 expired in 2007 before the Court had completed ruling on the case.  Ultimately, the Court dismissed the challenge to the 2002 version of NWP 21 as moot, but allowed the plaintiffs to amend their complaint to add a challenge to the renewed 2007 version of NWP 21. 

    The plaintiffs simultaneously pursued a challenge of the 2007 NWP while appealing the dismissal of their challenge to the 2002 version.  The Corps of Engineers moved to stay the new challenge pending the plaintiffs’ appeal of the order dismissing their challenge to the 2002 version of NWP 21, arguing that the cases have substantially overlapping issues.  By order dated June 5, 2008, however, the district court denied the government’s motion and required that the parties proceed with a briefing schedule on the challenge to the new NWP 21.

     This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

WVDEP Proposes Revisions to the De Minimis Table to the Voluntary Remediation & Redevelopment Rule as an Emergency Rule

     On June 2, 2008, the West Virginia Department of Environmental Protection (WVDEP) filed with the West Virginia Secretary of State a proposed emergency rule proposing revisions to the De Minimis Table, Table 60-3B, to the West Virginia Voluntary Remediation & Redevelopment (WV VR&R) Rule, 60 CSR 3. In some cases, a specific proposed value would increase, and in other cases, a proposed value would decrease, i.e., become more stringent or protective.  Additionally, four chemicals would be added to the Table and nine would be deleted.  The proposed revisions were shared with the WV VR&R Technical Subcommittee, which includes representatives of the WVDEP, West Virginia Chamber of Commerce, and National Institute for Chemical Studies, and a licensed remediation specialist, and the subcommittee members concurred with the revisions.

     The West Virginia Voluntary Remediation & Redevelopment Rule establishes cleanup standards based on human health risks in light of the current or future uses of a site.  The De Minimis Table sets forth concentration levels for each of the listed contaminants.  The Table is used extensively in a voluntary remediation to determine if environmental contamination at a site exceeds levels that are protective of human health.  If the environmental contamination at a site exceeds the levels in the Table for the contaminants found on the site, then remediation is necessary.  Based on additional scientific information that has been acquired regarding the toxicity of the chemicals listed in the Table, not all of the values in the Table are current.  Values used to estimate the toxicity for a number of these chemicals have changed, and the protected values for those chemicals have changed, too.  

     The Secretary of State now has 42 days to approve or reject the proposed emergency rule.  In approving or rejecting an emergency rule, the Secretary of State decides if an emergency exists.   Here, the Secretary of State is likely to find that an emergency exists and approve the proposed emergency rule.  Some of the chemicals being revised are known carcinogens and failure to implement the revised Table would result in remediation in properties to levels of protectiveness insufficient to meet the levels mandated elsewhere in the rule to protect human health.  For those chemicals where an increase in value is proposed, however, the existing De Minimis standards may be more restrictive than necessary, and thus require expenditure of resources for unnecessary or excessive remediation.  If the Secretary of State approves the emergency rule, it will take effect July 14, 2008, and be effective for a maximum of 15 months. 

     Meanwhile, the WVDEP must file the emergency rule as a proposed rule and either complete a hearing or comment period or file for a hearing or comment period by July 3, 2008.  In addition, the WVDEP approved legislative rule must be filed with the Legislative Rule-Making Review Committee within 90 days or by September 2, 2008.  If the WVDEP misses either of these deadlines, the emergency rule expires and cannot be re-filed. 

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Regional Criminal Enforcement Counsel Speaks at 2008 Environmental Academy

     Perry McDaniel, Regional Criminal Enforcement Counsel with the U. S. EPA, spoke at the 2008 Environmental Academy on May 29, 2008.  Mr. McDaniel explained that the goals of environmental crimes prosecutions are to punish and deter the most egregious  environmental offenders, eliminate the economic incentives for non-compliance, compliment civil and administrative enforcement efforts, and generally support the mission and goals of the EPA and the Federal Government.  Mr. McDaniel provided a good overview of environmental crime enforcement to the non-lawyer attendees of the Academy.

     Of particular interest was Mr. McDaniel’s discussion of the requirements for his office to prosecute an environmental crime.  First, the EPA must determine whether or not the statute implicated provides legal authority for imposition of criminal sanctions to address certain types of violations.  If the EPA has the legal authority to prosecute, the decision must be made whether or not prosecution should take place.  In explaining when he would exercise prosecutorial discretion, Mr. McDaniel provided numerous factors he considers.  Among those factors are:

●          significant harm to the environment or human health;

●          history of repeated violations;

●          deliberate misconduct resulting in violation;

·                    concealment of misconduct or falsification of records;

·                    tampering with monitoring equipment;

·                    lying to regulators.

     Mr. McDaniel further noted that most federal environmental laws contain provisions providing for criminal penalties, including the Clean Water Act, Resource Conservation Recovery Act, and Clean Air Act.  Mr. McDaniel stressed that individuals and individual employees of corporations may be prosecuted for environmental crimes.  Mr. McDaniel provided specific discussions of violations occurring under three major environmental statutes.  The Clean Water Act provides for a term of imprisonment of up to fifteen years for knowing and/or negligent violations.  Criminal fines may also be imposed under the Clean Water Act. Mr. McDaniel stated that his office has prosecuted sewage treatment plants, sewage haulers, electroplating operations, coal companies and bridge painters in West Virginia.  Mr. McDaniel also provided examples of prosecutions under the Resource Conservation Recovery Act and the Clean Air Act.  It should also be noted that traditional criminal offenses can frequently be charged in conjunction with the prosecution of environmental crimes, including making false statements, mail fraud, obstruction of agency proceedings, and conspiracy.  A common theme throughout the presentation was the necessity for open, honest communication with environmental regulators.

     In closing, Mr. McDaniel noted that, for the year 2007, 226 defendants were charged with environmental crimes.  These prosecutions resulted in 64 years of sentenced jail time and 63 million dollars worth of fines!  Mr. McDaniel’s presentation was an informative reminder that compliance with environmental laws should be taken very seriously.

     This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.

Court of Appeals Reverses District Court on NEPA Challenge

     Despite the fact that National Environmental Policy Act (“NEPA”) is almost 40 years old, some federal district courts still confuse their role in reviewing challenges to agency actions.  NEPA was enacted in 1969 in order to raise the awareness of federal agencies regarding the environmental impacts of major federal actions, such as issuance of a permit.  Generally, the Act requires agencies to conduct an Environmental Assessment (“EA”) to determine if a proposed federal action will have a significant impact.  If not, the agency issues a Findings of No Significant Impact (“FONSI”) to support the major federal action.  If the agency finds that there will be a significant impact, it is required by NEPA to prepare an Environmental Impact Statements (“EIS”) which is a detailed examination of the environmental impact of the agency’s proposed action.

     Despite the widespread recognition that NEPA is a procedural statute and not designed to yield any particular substantive result, some district courts still view NEPA challenges as inviting a review of the merits of the agency decision.  An example is presented in Sierra Club v. Van Antwerp, _____ F.3d _____, 2008 WL 1991446 (11^th Cir. May 9, 2008).  In that case the Army Corps of Engineers granted a controversial permit for limestone mines located in south Florida’s Lake Belt which comprises 60,000 acres of wetlands.  The decision was issued after the preparation of an EIS (and a Supplemental EIS) which recognized the project’s negative environmental impacts.  The district court essentially concluded that the permits were to be vacated and issued what amounted to an injunction against the mining operations.  Although the Court of Appeals commended the district court for its thoroughness, it noted that the district court remanded the permits to the Corps because of the cumulative effect of the Corps’ errors, rather than procedural flaws in its NEPA review.

     The Court of Appeals cited several passages from the district court opinion indicating that the district court had predetermined the outcome and, in effect, focused on the merits of the Corps’ decision rather than its compliance with the procedural standards of NEPA.  The Court of Appeals concluded “no matter what evidence supported that conclusion, the [district] court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing”.  Sierra Club v. Van Antwerp, 2008 WL 1991446 at 7. 

     The Court of Appeals made it clear that the district court had violated longstanding principles governing challenges under NEPA including the requirement to give substantial deference to agency decisions.  The Court held that requirement of deference includes not only the decision itself but questions such as what evidence to find credible, whether to issue a FONSI or EIS, how much discussion to include on each topic and how much data is necessary to fully address each issue.  The Court noted that, since NEPA is procedural, it would not violate NEPA if the EIS noted that granting the permits would result in the permanent irreversible destruction of the entire Florida Everglades, but the Corps decided that economic benefits outweighed that negative environmental impact.

     In conclusion, the Court stated “NEPA can never provide grounds for the court to direct a federal agency’s substantive decision”.  Id at 8.

     This article was authored by James R. Snyder, Jackson Kelly PLLC.  For more information on the author see here.

EPA Indefinite Stay of NSPS for Equipment Leaks of VOC from SOCMI and Petroleum Refineries

     June 2, 2008 (73 FR 31372) EPA announced a direct final action effective August 1, 2008, regarding the New Source Performance Standards (NSPS) for equipment leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry (SOCMI) and Petroleum Refineries (40 CFR 60 Subparts VV, VVA, GGG, GGGa) staying several requirements of the SOCMI/Petroleum Refining  NSPS under reconsideration by EPA until the time  EPA reaches a final decision on the requirements. The stay affects synthetic organic chemicals manufacturers and petroleum refineries

     On November 16, 2007, EPA promulgated amendments and established new standards of performance for equipment leaks of VOC in the SOCMI and Petroleum Refineries (see 72 FR 74860). Following the promulgation of the final amendments and new standards for these industries, EPA received a petition for reconsideration on January 15, 2008 from the American Chemistry Council (ACC), the American Petroleum Institute (API), and the National Petrochemical and Refiners Association (NPRA) ("Petitioners''). The petitioners, pursuant to Clean Air Act §307(d)(7)(B), requested EPA reconsider four provisions in the rules:

(1) Clarification of the definition of process unit in subparts VV, VVa, GGG, and GGGa; which is the key definition to the applicability of the NSPS requirements

(2) Assigning of shared storage tanks to specific process units in subparts VV, VVa, GGG, and GGGa;

(3) Connecter monitoring requirements in subpart VVa; and

(4) The definition of capital expenditure in subpart VVa.

     The petitioners also requested that EPA stay the effectiveness of these provisions of the rule pending resolution of their petition for reconsideration. On March 4, 2008, EPA sent a letter to the petitioners, through their counsel, informing them that EPA was granting their request for reconsideration on three of the issues listed above and declining to take action on the issue of the clarification of the definition of process unit. EPA granted a 90-day stay until June 1, 2008 of the provisions of the three rules under reconsideration, as well as the clarification of the definition of process unit, because of its interaction with the new provision regarding the allocation of shared storage vessels. 

     EPA took the unusual action of staying the rule because the method of allocating shared storage vessels and the requirements for connector monitoring were first introduced in the final rule. Indeed, in the proposed rule EPA stated that it would not address connector monitoring. NSPS are generally applicable to units constructed, modified or reconstructed after the date of the proposed rule. Therefore, several requirements of the SOCMI and petroleum refinery NSPS were immediately effective November 16, 2007 for equipment leaks of VOC from affected SOCMI facility and petroleum refinery units constructed, reconstructed, or modified after November 7, 2006. Certain facilities were put in the position of being out of compliance with requirements for which they had no notice or time to come into compliance. EPA are also stayed the new definition for capital expenditure in 40 CFR part 60, subpart VVa, as it relates to projects  at sources occurring prior to November 16, 2007. This new definition is different than the definition in the proposed 40 CFR part 60, subpart VV, and the resulting capital expenditure value could make sources that undertook changes between the proposal and final action into affected sources even though they would not have been under the previous definition and even though they had no notice of the change. Based on these considerations, EPA determined to extend its initial June 1, 2008 stay for the remainder of our reconsideration process, without any time constraint.

     However, if EPA receives adverse comment or a hearing request on its stay by July 2, 2008, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. As a back-up EPA also promulgated a proposed rule at 73 FR 31376 so that in the event there is adverse comment, and the final rule has to be withdrawn, the proposal for stay will have been made, so that a final stay could promptly issue. 

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

Status of Memorandum of Agreement with U.S. EPA for the West Virginia Voluntary Remediation and Redevelopment Program

     At the Environmental Academy held in Charleston, West Virginia, on May 29, 2008, Ken Ellison, Director of the Division of Land Restoration of the West Virginia Department of Environmental Protection, reported on the status of negotiations with U.S. EPA concerning the memorandum of agreement (MOA) for the West Virginia Voluntary Remediation and Redevelopment Program.  Mr. Ellison stated that U.S. EPA had hired a contractor to review the West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3, and that the contractor had completed its review.  Mr. Ellison said he expected to have the contractors’ findings in the near future.  Mr. Ellison declined to speculate when West Virginia might have a MOA for its voluntary cleanup program with U.S. EPA.  The state has been pursuing a MOA with U.S. EPA for more than ten years.  An MOA would offer liability protection from federal response and enforcement actions by U.S. EPA unless, in exceptional circumstances, the site poses an imminent and substantial threat to human health or the environment.

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Midwest Governors Association Addresses Greenhouse Gas Reductions

     The Midwest Governors Association Greenhouse Gas Advisory Committee is undertaking a process to reduce GHG is its member states. This process is in response to an agreement dated November 15, 2007, involving the Governors of Illinois, Iowa, Kansas, Michigan, Minnesota and Wisconsin and the Premier of Manitoba, called the Midwestern Greenhouse Gas Reduction Accord.  The “Accord” calls for the development of targets for GHG emission reductions and time frames consistent with state targets by July 2008 and the complete development of a regional cap and trade agreement by November 2008. 

     While the principle objective of the program is to address greenhouse gas reduction programs applicable to the signatory states and provinces, one of the design principles that is embodied in the Accord’s work plan, is to enable linkage to systems and other jurisdictions with similarly rigorous accounting to create economies of scale, increase marketing efficiencies, diversity and liquidity, while reducing costs.  Thus, a component of the Accord is to determine how to relate the program to activities in other states. 

     The Accord is implemented through a variety of committees including a Steering Committee (responsible for overall implementation of the Accord, a scope subgroup (responsible for identifying the scope and points of regulation for the cap and trade program), the allowances subgroup (responsible for recommending how allowances will be distributed in the cap and trade program), the offsets subgroup (responsible for making recommendations on key design elements for an offset component for the program), the target setting data and reporting subgroup(responsible for assembling emission inventories and supporting data needs), and the modeling and analysis subgroup (responsible for analyzing the cap and trade program, compiling the appropriate assumptions for the modeling analysis and overseeing the modeling analysis).

     Several meetings of these various committees have already taken place.  The next meeting of the full advisory group will be held in Minneapolis, Minnesota on June 23-24, 2008.  It is anticipated that initial modeling results will be reported in the August to September time frame with final recommendations being advanced by November 2008. 

     The meetings of the stakeholder group are open to the public.  Several industry representatives have solicited various consulting firms to obtain technical support for participating in this process.  Anyone interested in further information about this industry initiative or the activities of the MGA GHG Accord Advisory Committee is invited to contact the author of this article. 

     This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

New Definition of Solid Waste to be Issued by USEPA this Summer

            While speaking at the 8^th Annual WV Environmental Academy on May 29, 2008, Mary Beth Sheridan of the U.S. EPA, Office of Solid Waste offered an overview of EPA’s soon-to-be-issued definition of “solid waste.”  EPA had originally issued a proposal on October 28, 2003 that would make major revisions to the definition of solid waste in response to the 2000 court decision in American Battery Recyclers (ABR) v. EPA.  A supplemental proposal was issued on March 26, 2007 (72 FR 14172) and EPA promises a final rule by Summer 2008

            In response to concerns that regulation under Subtitle C could discourage recycling, EPA proposed the following in the March 26, 2007 supplemental proposal and is still presenting this outline as important information in understanding its upcoming rulemaking:

• Materials generated and recycled under the control of the generator would be excluded from the definition of solid waste.
• Materials generated and transferred to another company for recycling would be excluded from the definition of solid waste.
• Materials that are non-wastes can be determined through a petition process would be excluded from the definition of solid waste.
• Materials that are generated and recycled at the same facility would be excluded from the definition of solid waste.
• Materials that are generated and recycled by the same company (even at different facilities) would be excluded from the definition of solid waste.
• Materials generated and recycled under contractual arrangements (e.g., residues recycled by a tolling contractor) would be excluded from the definition of solid waste.
• Conditions for “under the control of the generator” exclusion:
  • No speculative accumulation
  • One-time notice
  • Any storage in land-based units is contained
• Conditions for the transfer-based recycling:
  • No speculative accumulation
  • One-time notice
  • Recordkeeping and reasonable efforts by the generator
  • Preformance-based storage standard for the recycler
  • Safe management of recycling residues
  • Financial assurance by the recycler
  • Recordkeeping by the recycler
• Non-Waste Petition Process – This is intended to be an administrative procedure where petitioners submit information to show their materials are clearly not discarded per criteria set out in the regulations
  • Material recycled in a continuous industrial process
  • Material resembling a product or intermediate
  • Material recycled through contractual arrangements where the generator retains control over production and residuals.
• Legitimacy Criteria
  • All recycling of hazardous wastes/secondary materials must be “legitimate”
  • Criteria for determining legitimacy of recycling practices are currently in guidance, preamble statements
  • States, other stakeholders have long argued for regulations for more transparency and certainty and ease of enforcement.
• Restructuring of the proposed legitimacy criteria:
  • Materials must provide useful contribution to product or recycling process.
  • Recycling must produce valuable product (but that does not have to be valuable to the generator).
  • Materials must be managed as valuable commodities.
  • Products of recycling must not contain significantly higher levels of hazardous criteria.
  • Supplemental proposal provides more guidance on considering economics of recycling in making legitimacy determinations.

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC. For more information on the author see here.