Energy and Environment Monitor

West Virginia Land Stewardship Program

In the 1970s and 1980s, Congress passed a broad range of regulations, such as the Resource, Conservation and Recovery Act (RCRA) in 1976, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, and the Superfund Amendments and Reauthorization Act (SARA) in 1986, which were designed, in part, to investigate and remediate environmentally contaminated properties. It has generally been estimated that there are approximately 130,000 to 450,000 contaminated properties located in the United States. Beginning in the late 1980s, several states began developing their own brownfield and voluntary remediation programs (VRPs) in response to the growing cost, complexity, and long time-frames associated with remediating sites under RCRA and CERCLA. According to the National Brownfields Association (www.brownfieldassociation.org), most states have now implemented some form of a VRP and more than 50,000 sites have so far been cleaned up under these programs. West Virginia’s VRP became effective on July 1, 1997 and to date approximately 200 sites have been entered into the VRP. 

Like most state VRPs, the WV program utilizes a mix of risk based cleanup (RBC) standards and a combination of engineering and/or institutional controls (ICs) to close a site. Examples of engineering controls include excavating contaminated soil, caps, slurry walls, and groundwater treatment systems. Typical examples of institutional controls include restricting future land-use to a non-residential industrial use and prohibiting the use of groundwater. Under the WV VRP, any institutional controls that are implemented are described in a document referred to as a Land Use Covenant (LUC), which is attached to the property deed and recorded at the county courthouse. As envisioned when the WV Legislature passed the Act, recording the LUC with the property deed is intended to provide a means by which future land owners and property users will know that land use restrictions have been imposed on a property that has been remediated under the WV VRP. 

As more sites have been closed under state VRPs, the regulatory community, including the West Virginia Department of Environmental Protection (WVDEP) has identified a number of challenges associated with the long-term maintenance of institutional controls described in Land Use Covenants, some of which are as follows: 

·        Local land use decision makers (e.g., developers and governmental officials) may be unaware of the existence of Land Use Covenants within their communities.

·        Environmental regulators are generally not involved with site redevelopment; therefore, there may be no governmental confirmation that the protections in the LUCs have been adhered to during redevelopment.

·        New property owner / tenants may be unaware of the land use restrictions.

·        Retirements, reassignments, lost, or lack of records. 

Therefore, in early 2009 the WVDEP brought together a small group of stakeholders to assist it to evaluate these challenges and to evaluate the feasibility/framework of establishing a State Voluntary Land Stewardship Program or Trust. The stakeholder groups include representatives of the WV Chamber of Commerce, WV Coal Association, WV Manufacturers Association, WV Development Office, FMC Corporation, Dow Chemical Company, ExxonMobil Corporation, and Marshall University. This stakeholder group is termed the WVDEP IC Focus Group and will be working during 2009 to provide input, ideas, reactions, and recommendations to WVDEP. In general, the WVDEP envisions that a West Virginia Land Stewardship Program will consist of the following four components: 

·        Tracking.

·        Inspecting.

·        Maintaining.

·        Notifying.

As discussed by Ken Ellison, Director, WVDEP, Division of Land Restoration at the WVCOC Environmental Academy on May 21, 2009, the WVDEP IC Focus Group is using as its template a model developed by the Pennsylvania Department of Environmental Protection (PADEP) during 2002, but which was ultimately not implemented. Ken Ellison also noted that West Virginia is being very proactive on this issue and that USEPA Region III is looking to West Virginia to develop a working model that can be used as a template throughout Region III. Finally, as summarized by Ken Ellison, a WV Land Stewardship Program should meet the following objectives: 

·        Comprehensive approach.

·        Build on existing programs and initiatives.

·        Provide stewardship Land Use Covenants.

·        Appeals to both the public and private sectors.

·        Utilizes current national standards or develops systems that can be applied nationwide.

·        Provides for a sound perpetual care mechanism. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

WVDEP Water Quality Standards Public Meeting

On Monday, May 18, 2009 the WV Department of Environmental Protection held a Water Quality Standards public meeting. The following is a link to the handouts: http://www.wvdep.org/item.cfm?ssid=11&ss1id=747. 

The quick summary is: 

Methylmercury Fish Tissue: The agency is working on a justification for its fish tissue criteria for methyl mercury. They are asserting that the evidence supports the conclusion that the fish tissue limit of .5 ug/g is protective of human health and therefore revision is unnecessary. 

Nutrients: It is DEP's position that phosphorus is the key nutrient at issue in WV. They are in the process of conducting a study of the Greenbrier River concerning the relationship of hardness, alkalinity, and phosphorus to algae bloom. DEP will be conducting a survey, similar to that done in Montana, to determine public opinion as to what amount of algae is objectionable. If and when the Chesapeake Bay concludes its TMDL, WV will factor that in to its nutrient regulatory program. 

Iron - Trout Streams: WV iron limit is the most stringent in the country and a more lenient limit may be appropriate. The agency is reviewing the issue and plants to have a study finalized on how WV trout streams are doing. 

TDS: The agency is working with EPA and PA and is considering the need to develop a water quality standard for TDS. Most other states surrounding WV have a standard and the agency is going to do some large river monitoring with an emphasis upon the West Fork River, Monongahela River at Pt Marion, Dunkard Creek and the Tygart River.  

The agency is soliciting for issues for its triennial review for 2011 and is asking for input by July 2, 2009. 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.

Interstate Commission to Conduct Hearings on Proposed Revisions to Pollution Control Standards for the Ohio River

The following is the recently released notice of the upcoming hearings and informational meeting related to ORSANCO's proposed revisions to its Pollution Control Standards. 

The Ohio River Valley Water Sanitation Commission (ORSANCO) will conduct hearings, open to the public, on its Pollution Control Standards for wastewater discharges to the Ohio River as follows:   

When:              Wednesday, June 24, 2009

                        4:00 PM - 6:00 PM and 7:00 PM – 9:00 PM           

Where:             Holiday Inn Cincinnati – Airport

                        1717 Airport Exchange Blvd.

                        Erlanger, KY  41018 

The purpose of these hearings is to receive oral and written comments concerning proposed revisions to the Commission’s Pollution Control Standards (2006 Revision) for the Ohio River.  The record of the hearings shall remain open and written testimony accepted until July 24, 2009.  Written testimony should be directed to the Ohio River Valley Water Sanitation Commission, 5735 Kellogg Ave., Cincinnati, OH  45228. 

In addition to the hearings, informational meetings open to the general public will be held as follows for the purposes of answering questions and holding discussion on proposed revisions to the Pollution Control Standards: 

Tuesday, June 9, 2009                          Undo’s Italian Restaurant         

4:00-6:00 PM and 7:00-9:00 PM         51130 National Road, St. Clairsville, OH

Wednesday, June 10, 2009                  Pullman Plaza Hotel

4:00-6:00 PM and 7:00-9:00 PM         1001 Third Avenue, Huntington, WV

Tuesday, June 16, 2009                        Falls of the Ohio State Park

4:00-6:00 PM and 7:00-9:00 PM         201 West Riverside Drive, Clarksville, IN

Wednesday, June 17, 2009                  Aztar Executive Conference Center

4:00-6:00 PM and 7:00-9:00 PM         421 NW Riverside Drive, Evansville, IN

Thursday, June 18, 2009                      Courtyard by Marriott Paducah West

4:00-6:00 PM and 7:00-9:00 PM         3835 Technology Drive, Paducah, KY

Copies of the Commission’s present Pollution Control Standards delineating the proposed revisions will be available on request from the Commission office, and on the ORSANCO web site (www.orsanco.org). 

ORSANCO is an interstate agency established in 1948 to control and abate water pollution in the Ohio River Valley.  Member states include Indiana, Illinois, Kentucky, New York, Ohio, Pennsylvania, Virginia, and West Virginia.  The federal government is also represented.  

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

EPA Proposes Green House Gas Endangerment Finding

               On April 24, 2009, newly anointed…uh…appointed EPA Administrator Lisa Jackson proposed to find that green house gasses in the atmosphere “endanger the public health and welfare of current and future generations.” 74 Fed Reg 18886, April 24, 2009. Administrator Jackson notes in her proposed finding that there are high atmospheric levels of green house gasses and that “[t]hese high atmospheric levels are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes.” (emphasis supplied).

               The proposal adds that “the effects of climate change observed to date and projected to occur in the future--including but not limited to the increased likelihood of more frequent and intense heat waves, more wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems--are effects on public health and welfare within the meaning of the Clean Air Act.” 

               The Administrator proposes to find that atmospheric concentrations of six greenhouse gasses endanger public health and welfare within the meaning of Section 202(a) of the Clean Air Act. The proposal applies to carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexafluoride.  

               In a second important part of the proposal, the Administrator also proposes to find that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydroflourocarbons from new motor vehicles and new motor vehicle engines “are contributing to the mix of greenhouse gasses in the atmosphere” and the proposal therefore includes these gasses from motor vehicles as endangering public health and welfare under Section 202(a) of the Clean Air Act. 

               Significantly, the Administrator admits that “[t]here are other greenhouse gasses and aerosols that have warming (and cooling) effects but are not being included in the proposed definition of air pollution.” Thos other gasses in include: 

–        Water vapor, excluded because direct emissions from human activities have only a negligible effect on atmospheric water vapor;

–        Chloroflourocarbons and Hydrochloroflourocarbons, excluded because they “have not been a priority for the scientists and policy analysts involved in studying climate change, and are not a priority for the Administrator in this action;”

–        Troposhperic ozone, excluded because it is a short lived gas so its global heating effect is more uncertain;

–        Black carbon, excluded because there is considerably more uncertainty associated with black carbon’s warming effect compared to the estimated warming effect of the six long-lived greenhouse gasses;

–        and a category called “other short-lived precursor gases,” excluded because the total global radiative forcing contributions of these compounds is not yet available 

EPA notes that the Administrator does not need to have scientific certainty to make endangerment finding but “must exercise reasoned decision making, and avoid speculative or crystal ball inquiries.” 74 Fed Reg 18890. The Administrator adds that “[i]n the context of climate change…the Administrator should take account of the most catastrophic scenarios and their probabilities.” 74 Fed Reg 18890/2.  

The proposal provides four conditions that EPA believes the Administrator is required to meet in making the finding, including that:

1.   “The Administrator may be called upon to make decisions while recognizing the uncertainties and limitations of the data or information available, as risks to public health or welfare may involve frontiers of scientific or medical knowledge.”

2.   “The Administrator must exercise reasoned decision making, and avoid speculative or crystal ball inquiries.”

3.   “The Administrator is to consider the cumulative impact of sources of a pollutant in assessing the risks from air pollution…”

4.   “The Administrator is to consider risks to all parts of our population, including those who are at greater risk for reasons such as increased susceptibility to adverse health effects.” 74 Fed Reg 18890/3  

EPA notes, in addition, that “[t]he phrase ‘may reasonably be anticipated’ and the term “endanger” authorize, if not require, the Administrator to act to prevent harm and to act in conditions of uncertainty.” 74 Fed Reg 18891/1 (emphasis supplied). 

Comments are sought regarding the data on which the proposed findings are based, the methodology used in obtaining and analyzing the data, and the major legal interpretations and policy considerations underlying the proposed findings.

 Comments must be submitted on or before June 23, 2009, and may be made by

1. Federal Rulemaking Portal: http://www.regulations.gov
2. Email: GHG-Endangerment-Docket@EPA.gov
3. Fax: (202) 566-1741
4. Mail: EPA, EPA Docket Center (EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0171, 1200 Pennsylvania Avenue, NW, Washington, DC 20460

Comments should be directed to: Docket ID No. EPA-HQ-OAR-2009-0171 

The environmental community endorses the proposal. Phil Radford, Executive Director of Green Peace USA, was quoted after the proposal saying “[o]nce the administration issues the final declaration, the Clean Air Act is triggered, giving the administration sweeping authority to decide how to reduce global warming pollution from power plants, vehicles, and other sources, how much, and how fast. Obama's landmark proposal means that the administration no longer has to go through Congress to make the green economy a reality. No horse-trading with hostile Republicans. No need to throw tens of billions of dollars at the oil and coal industries to win the votes of polluter-friendly members of Congress. No need for sixty votes in the Senate (or even, for that matter, fifty). It will be the EPA looking at the science, listening to public comment and deciding how best to protect the planet, public health and the economy. Make no mistake; this is hardball. But for better or worse, hardball is what it's going to take to solve the climate crisis, create a green economy and meet the president's healthcare goals. At the end of the day, President Obama can't afford to let Congress set the schedule—or unilaterally decide the fate of the planet.”  

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Toxic Release Inventory Reporting Changes for 2008

On Tuesday, April 21, 2009 the United States Environmental Protection Agency and the Toxics Release Inventory (TRI) Program announced the release of the TRI-MEweb to all TRI reporting facilities for the Reporting Year 2008 (RY08), including new facilities that have to file TRI reports for the first time.  

TRI-MEweb allows you to submit your RY08 TRI forms via the internet through EPA’s Central Data Exchange (CDX). The following states are participating in the TRI State Data Exchange program: Colorado, Delaware, Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, and Washington.   TRI-MEweb will send TRI reports directly to the states participating in the TRI State Data Exchange. TRI-MEweb will be able to print forms or save files to CD or diskette to submit to states not participating in the State Data Exchange Program. 

Melyssa Savage, Title III coordinator with the WV Division of Homeland Security and Emergency Response, indicated that WV is able accept either CD or diskette submissions from WV sources. At this time, she was not aware of any plans by WV to join the EPA’s Central Data Exchange program.  

TRI-MEweb has several advantages over the TRI-MEdesktop software, including the following: 

1.   TRI-MEweb is web-based, there is no software to download, and can be accessed anywhere. 

2.   TRI-MEweb calculates Section 8 column b automatically based on entries in Section 5 and 6. 

3.   RY08 forms will be pre-populated with data from RY07 in order to save time and data entry. 

4.   Facility and Chemical Quicklists to allow facilities to choose which sections of the form are applicable to them, and  

5.   You can compare current year data against last year’s filings to see if there are large percentage changes in reported values that might indicate a possible data entry error. 

Requirements to submit using TRI-MEweb for RY08: 

1.   You must have Internet access. 

2.   The individuals who will use TRI-MEweb to prepare and submit data to CDX (“preparers”) and individuals who will use CDX to certify forms submitted by TRI-MEweb (“certifying officials”) must have CDX accounts. You may register for an account or access your existing account at http://cdx.epa.gov. 

3.   To meet the government wide initiative to increase security of electronic reporting, the certifying official must sign an Electronic Signature Agreement (ESA) and mail this to the TRI Data Processing Center (TRIDPC) prior to being able to certify a TRI submission prepared by TRI-MEweb. The ESA must be received and processed by the TRIDPC before a submission can be certified. This process may take up to five business days. The certifying official needs to get this in as soon as practical.  

4.   Preparers can gain access to their facility’s TRI data in the TRI-MEweb with the unique facility access code emailed to the facility Technical Contact by US EPA or by entering the last year’s Technical Contact’s name and phone number for the facility. 

Please Note: TRI reporters that are required to report Dioxin will need to use TRI-MEweb or paper forms.  

If you plan to utilize TRI-MEweb it would be advisable to start the process early for the following reasons. 

·        The CDX accounts for the preparer and certifier need to be established. 

·        The Certifying Official must sign and mail an Electronic Signature Agreement.

·        Most website slowdown with increased traffic. The closer to the due date the more users will be on the system. This can result in site crashes.  

TRI-MEdesktop is available for download at www.epa.gov/tri/report/software/index.htm. This is the last year that TRI-MEdesktop will be available. It should be noted that TRI-MEdesktop is not compatible with the Windows VISTA operating system.    

Form A changes:

Toxic Release Inventory (TRI) reporting requirements changed on March 11, 2009, as a result of a change in federal law. The Omnibus Appropriations Act, return TRI reporting requirements back to the rules in effect prior to December 22, 2006. These changes affect TRI reports due July 1, 2009. The change requires that all reports on persistent, bioaccumulative, and toxic (PBT) chemicals be submitted on “Form R,” the more detailed form. For all other chemicals the shorter form, “Form A” may be used only if the “annual reporting amount” is 500 pounds or less and that the chemical was manufactured, processed or otherwise used in an amount not exceeding 1 million pounds during the reporting year.     

For some basic information on Toxic Release Inventory, see the following web site:  http://www.epa.gov/tri.   

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC. For more information on the author see here.

U.S. Supreme Court Curtails CERCLA Joint Several Liability and Arranger Liability

  Finally the U.S. Supreme Court has issued a definitive opinion (8-1, Burlington Northern & Santa Fe Railway co. et al. v. United States et al. (No. 07–1601, May 4, 2009),  limiting CERCLA liability in two major aspects:

1.         Joint and several liability is not applicable if there is reasonable evidence supporting apportionment.

2.         When a company has sold a product, the company’s mere knowledge of incidental spills and leaks is insufficient grounds for concluding that it is liable for “arranging for” disposal.

The basic background facts were that commencing in 1960, Brown & Bryant, Inc.(B&B), an insolvent company at the time of the CERCLA action, operated an agricultural distribution facility initially on one parcel of land in California and later expanded its operations onto an adjacent parcel owned by Burlington Northern and Union Pacific Railroads (“the Railroads”).   Shell sold a pesticide to B& B which it then distributed. There was evidence of minor, routine spillage when the pesticide was transferred from the common carrier to B & B tanks and routine spills and leaks of the pesticide as B & B handled it for ultimate distribution.  In 1991, EPA issued an administrative order to the Railroads directing them, as owners of a portion of the property which was leased by B & B, to perform certain remedial tasks in connection with the site. The Railroads did so, incurring expenses of more than $3 million.  Since B & B was insolvent, the balance of the contaminated B & B property was cleaned up by EPA and California at a cost of approximately $8 million. EPA and California then sued the railroads and Shell pursuant to CERCLA §107 for recovery of $8 million in clean-up costs.

The government argued that the Railroads were jointly and severally liable for the entire amount of the $8 mllion in response costs unless they could prove that the harm from the release of hazardous substances is divisible and that divisibility had not been proven. The EPA acknowledged that the legislative history of CERCLA indicated that joint and several liability was to be governed by the principles in the Restatement of Torts (2nd). Under the Restatement, damages for a single harm can be apportioned among multiple causes only if “there is a reasonable basis for determining the contribution of each cause to a single harm.” Restatement§ 433A(1)(b). When two or more liable parties bring about a single harm, and one or more of them seeks to limit its liability on the basis that the harm is capable of apportionment, the burden of proof as to the apportionment is on such party. Restatement §433B(2). That burden includes both the burden of production (i.e., of presenting evidence sufficient to establish its share of the harm) and the burden of persuasion (i.e., of demonstrating by a preponderance of the evidence that apportionment is warranted). Restatement §433B. The EPA argued that the Restatement specifically identifies the insolvency of a co-defendant as a factor weighing against apportionment providing, even if a defendant carries its burden on apportionment, the defendant may still be held jointly and severally liable if the circumstances are exceptional, as when “one of two tortfeasors is so hopelessly insolvent that the plaintiff will never be able to collect from him the share of the damages allocated to him.” Restatement §433A. The EPA argued that this principle is consistent with CERCLA’s purpose of protecting the public.  The government argued that Shell was liable as an arranger if the disposal of hazardous waste via leakage and spillage was a foreseeable byproduct of Shell’s sale of the pesticide to B & B and that Shell was jointly and severally liable for the entire $8 million since the harm was not divisible and B & B was insolvent.  

The District Court, after a 6-week bench trial, found that the Railroads were liable as an owner of part of the facility and Shell was liable because it had “arranged for disposal ... of hazardous substances,” 42 U. S. C. §9607(a)(3). However , the  District Court went on to apportion liability, in a detailed and reasoned factual analysis, holding the Railroads liable for 9% of the Governments’ total response costs based on percentage of property owned , and Shell liable for 6% based on an estimate of the pesticide spilled compared with the amount of contamination from other substances.   

On appeal, the Ninth Circuit agreed that Shell could be held liable as an arranger under §9607(a)(3) concluding that an entity could arrange for “disposal” “even if it did not intend to dispose”of a hazardous substance. 520 F. 3d 918, 949 (CA9 2008). Although the Court of Appeals agreed that the harm in this case was capable of apportionment, it found that the District Court erred in finding that the record established a reasonable basis for apportionment and that Shell and the Railroads had failed to meet their burden of proof on the record.. The Court of Appeals reversed the District Court’s apportionment of liability and held Shell and the Railroads jointly and severally liable for the entire $8 million of the Governments’ response costs.

The Supreme Court found that the District Court had reasonably apportioned the Railroads’ share of the site remediation costs at 9% by calculating liability based on three figures—the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the court’s determination that only two polluting chemicals spilled on the leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination.  

The Supreme Court overturned Shell’s liability as one who “arranged for disposal” finding that in order to qualify as an “arranger” there must be intentional steps to dispose of a hazardous substance. Although the evidence showed that Shell was aware of minor, accidental spills during the transfer of the pesticide it sold to B & B, there was also evidence that Shell took numerous steps to encourage its distributors to reduce the likelihood of spills. The Court found that….” Shell’s mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it “arranged for” D–D’s [the pesticide] disposal.”

It is significant that this action was a cost recovery by EPA, since in its cost recovery actions, EPA has consistently taken the position that site contamination is not a divisible harm and questions of apportionment must be pursued between the parties as contribution actions.  

The Supreme Court’s opinion should also terminate EPA’s practice of imposing liability on product manufacturers based on the presumption that the companies must assume that their useful product will be spilled leaked and such spillage and leakage is disposal, so the sale of a product equals arranging for disposal. This strained interpretation has been largely rejected by the Circuit Courts, but some courts, particularly the Ninth Circuit, have adopted the sales = arranging for disposal argument. There should no longer be a question that sellers of product are not liable under CERCLA unless the company entered into the sale of the product with the intention that at least a portion of the product be disposed of by some method.

Justice Stevens delivered the opinion with Justices Roberts, Scalia, Kennedy, Souter, Thomas, Breyer and Alito concurring. Justice Ginsburg filed a dissenting opinion.

The following is a link to the opinion: http://supremecourtus.gov/opinions/08pdf/07-1601.pdf.

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

Will EPA Shut Down Surface Mining?

              For months, many in the industry have wondered how a new administration in the White House would impact coal—especially given the reports of negative statements by both candidates towards mountain top removal while on the campaign trail. After the new administration’s first 100 days, one thing appears likely: EPA will begin taking a more active role in the issuance of Clean Water Act (“CWA”) §404 dredge and fill permits, which are a necessary component of surface mining operations. But what is the basis for EPA’s recent involvement in the 404 permitting process? 

Section 404 permits are an integral component of surface mining operations. Surface mining of coal consists generally of a sequence of operations. First, the land is cleared and topsoil is removed and either redistributed or segregated for later re-use. The rock overlying the coal, known as “overburden,” is then typically drilled and fractured by blasting to allow its removal. At this point, the overburden, known also as “spoil,” is removed by earth-moving equipment such as loaders, draglines and shovels. Then, the exposed coal seam is excavated and, except where variances are granted, the spoil is returned by “backfilling” and “grading” to cover the area from which the coal was removed to restore it to its approximate original contour.    

The placement of excess “spoil” in the uppermost reaches of valleys in “valley fills” inevitably requires a Clean Water Act ("CWA") §404 permit because the fills intrude on small drainages that technically qualify as "navigable waters" under the CWA.. Although EPA is generally charged with securing the goals of the CWA, the Army Corps of Engineers is given the responsibility of permitting the “discharge of dredged or fill material” into the “navigable waters” of the U.S.   The EPA’s current involvement in numerous surface mine permits arises from section 404(c) of the CWA (33 U.S.C. 1344(c)), which charges the EPA with oversight of the Corps’ execution of the program and grants it the authority to veto Corps permits that the EPA finds inconsistent with the stated goals of the CWA.  

Specifically, §404(c) provides that, where EPA determines, after notice and opportunity for public hearing, that “unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas will result from the discharge of dredged or fill material into waters of the United States,” the Agency may exercise its authority to prohibit the specification of any defined area as a disposal site, or restrict or deny the use of any defined area for specification as a disposal site for the discharge of dredged or fill material. EPA’s authority extends to the withdrawal of authority to fill granted by existing §404 permits. EPA has only exercised its veto authority twelve times through 2008. See http://www.epa.gov/owow/wetlands/pdf/404c.pdf.   Since January 20, 2009, EPA has, however, issued multiple letters threatening the initiation of veto proceedings against pending applications for valley fill permits in West Virginia and Kentucky, and in the case of one permit has actually initiated those proceedings. The outstanding objection letters focus generally on three issues: 1) claims that loss of mayflies due to elevated conductivity violates State water quality standards; 2) fill minimization; and 3) whether the mitigation measures proposed by the mine operators are sufficient.  

EPA’s regulations for implementing section 404(c) are set forth in 40 CFR part 31. Four major steps in the process are: 1) the Regional Administrator’s notice to the U.S. Army Corps of Engineers (“the Corps”), the property owner, and the applicant (and/or project proponent) of the intention to initiate the section 404(c) process; 2) the Regional Administrator’s publication of a Proposed Determination to withdraw, deny, restrict, or prohibit the use of the site, soliciting public comment and offering an opportunity for a public hearing; 3) the Regional Administrator’s recommendation to the Assistant Administrator for Water at EPA Headquarters to withdraw, deny, restrict, or prohibit the use of the site (Recommended Determination); and, 4) the Assistant Administrator for Water’s Final Determination to affirm, modify, or rescind the Regional recommendation.  A flowchart outlining the 404(c) review process is available at http://www.epa.gov/owow/wetlands/pdf/404c.pdf.   

It remains to be seen whether EPA will actually veto these permits or is simply posturing to require changes to them. Once thing remains certain, though, permits will be harder to obtain.        

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

USEPA Determines “Checkerboard” Area of Mexico is “Indian Country”

The U.S. 10th Circuit Court of Appeals recently upheld the U.S. Environmental Protection Agency's ("EPA") determination that a "checkerboard" area of northwestern Mexico is "Indian country" subjecting a proposed uranium mine to regulation by the EPA instead of the New Mexico Environmental Department.   Therefore, Hydro Resources Inc. must obtain an underground injection control ("UIC") permit from the EPA pursuant to the Safe Drinking Water Act.   EPA has jurisdiction to implement its UIC for all lands in the United States, including Indian lands, unless the state or tribal government has been granted primacy to enforce the program. New Mexico has been delegated primacy for UIC programs, but no tribal nation has UIC jurisdiction for the Hydro Resources property. 

The checkerboard landownership in northwestern New Mexico was created from federal land grants to railroads in the 1800s, but after the railroad boom, the federal government re-purchased several land parcels for individual Navajos and the Navajo Nation. Hydro Resources purchased lands in fee simple within the checkerboarded area of mixed Indian and non-Indian lands.   The EPA determined that Hydro Resources' land was part of a "dependent Indian community" subjecting the proposed mine to EPA regulation.   Hydro Resources appealed the EPA's determination because it meant that Hydro Resources must obtain a federal permit instead of the approval it already obtained from the New Mexico Environmental Department. 

The 10th Circuit ruled that the costs and delays that would be incurred by Hydro Resources to secure an EPA permit constituted a sufficient “injury in fact” for standing to participate in the case. Because EPA's factual determination of the land status was outside its delegated authority, the 10th Circuit declined to grant Chevron deference to EPA’s administrative decision.   Considering that 97% of the population were Navajos and shared traditional Navajo living and working styles, the 10th Circuit nevertheless upheld the land designation determination that the Church Rock Chapter of the Navajo Nation constitutes a legitimate "community of reference" under the "dependent communities" standard that defines Indian country.   In his dissent, Judge Frizzel contended that the Church Rock Chapter should not be considered a community of reference because the land in question was uninhabited and lies approximately six miles from the Church Rock Chapter.   The dissent also noted the precedent of the opinion because never before had non-Indian fee land outside the exterior boundaries of a reservation been held to be dependent Indian community. The majority explicitly declined to rule on whether the same determination would be made if a tribal nation, rather than EPA, were asserting jurisdiction. 

This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.

Spill Prevention, Control, and Countermeasure (SPCC) Rule: An update

The Spill Prevention, Control, and Countermeasure (SPCC) Rule has evolved since December 11, 1973 when it was first introduced under the authority of §311(j) (1)(C) of the Clean Water Act (CWA).   The SPCC rule has been significantly revised by the US EPA in 1991, 1993, 1997, 2002, 2006, 2007, and 2008. The timeline as to when these revisions become effective are a major aspect of this update.   The SPCC rule applies to owners or operators of non-transportation-related facilities that drill, produce, store, process, refine, transfer, distribute, use, or consume oil or oil products; and could reasonably be expected to discharge oil to U.S. navigable waters or adjoining shorelines.  A facility is subject to the rule if they have an aboveground oil storage capacity greater than 1,320 U.S. gallons, or completely buried oil storage capacity greater than 42,000 U.S. gallons.  Over the course of the 26 years of the SPCC rule’s evolution, many exemptions have developed.  A more detailed look at the exemptions and regulations can be found at http://www.epa.gov/oilspill/.

 Important Dates:

August 16, 2002           Facilities in operation before August 16, 2002, must maintain an SPCC Plan in accordance with SPCC regulations.

November 26, 2008     The Federal Register published EPA’s final rule to revise the definition of “navigable waters” in the SPCC rule.

December 5, 2008       The Federal Register published EPA’s final rule to amend the SPCC rule.  An itemized summary follows.

May 1, 2009                Last day for Comments on whether a further delay of the effective date is necessary or prudent (established by April 1, 2009 rule).

July 1, 2009                 New facilities beginning operation after July 1, 2009 have six months after the start of operations to prepare and implement an SPCC plan.

 

Summary of the December 5, 2008 finalized rule

 

·        Hot-mix asphalt (HMA) has been exempted from SPCC requirements.

·        Pesticide application equipment and related mix containers have been exempted from SPCC requirements.

·        Residential heating oil containers (those used solely at single-family residences) have been exempted from SPCC requirements.

·        The definition of “facility” has been modified.

·        The facility diagram requirement has been revised.

·        The definition of “loading/unloading rack” has been established.

·        Subsets, Tier I and Tier II, of qualified facilities have been established and further clarified.

·        General Secondary containment requirements have been clarified.

·        The sized secondary containment exemption for mobile refuelers has been extended.

·        Security requirements have been amended.

·        Bulk storage container integrity testing requirements have been amended.

·        Several amendments have been added in relation to production facilities.

 

This article was authored by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here.

Senators Disagree Over Indirect Land Use Considerations for Renewable Fuels

The Energy Independence and Security Act of 2007 requires EPA to consider the indirect land-use changes, such as switching of land from forest to crop land, that would result from biofuel production.  The law requires the nation’s fuel supply to include 36 million gallons of renewable fuels such as ethanol by 2022.  In order to be considered a “renewable fuel”, the fuel must reduce greenhouse gas emissions through its entire life cycle by 20% relative to gasoline.  In October, 2008, EPA sent a draft proposed rule to the Office of Management and Budget to implement the renewable fuel standard (“RFS”) for interagency review.  The Obama administration pulled the draft proposal back from OMB review, but resubmitted it on February 26, 2009.  In the process, an issue as to whether to consider indirect land use changes has arisen.

 

            The Renewable Fuels Association and other ethanol industry groups maintain that there is inadequate scientific foundation for an analysis of the increase in greenhouse emissions resulting from indirect land-use changes.  Environmental groups have insisted that these increases be considered.

 

            A group of 12 farm state senators wrote EPA Administrator Lisa Jackson in March urging EPA to refrain from considering indirect changes to land use when calculating greenhouse gas emissions from biofuels as part of the renewable fuels proposal.  They pointed out that some biofuels such as soy-based diesel may not qualify as a renewable fuels and other fuels may follow suit.  The senators adopted the ethanol industry’s position that the method of calculating increases in greenhouse emissions from land-use changes was complex and not reliable.  They also indicated that resultant rulemaking confusions “could seriously harm our U.S. biofuels strategy by introducing uncertainty and discouraging future investments”.  In early April, Rep. Edward Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming, and two other House democrats warned the Obama administration that an Environmental Protection Agency rule on renewable fuels will not conform to the law if it does not consider indirect greenhouse gas emissions from land-use changes resulting from biofuels.

            This comes at a time when industry participants have begun to recognize that the 2022 goal cannot be met at current levels of fuel consumption so long as the amount of ethanol that can be added to fuel is limited to 10%.  On April 21, EPA recognized an application for the waiver of the 10% limit by volume on ethanol filed by an environmental group and 54 ethanol manufacturers.  The waiver application seeks to allow up to 15% ethanol by volume (E15).  EPA has requested comments on this waiver on or before May 21, 2009.  74 FR 18228.  EPA has 270 days to act on the application.  Among the considerations are whether this increase will harm engines and fuel storage and distribution equipment.

 

            In similar news, the congressional budget office reported during the second week of April that increased use of ethanol was responsible for about 10 – 15% of the rise in food prices from 2007 to 2008, but reduced greenhouse gas emissions from the transportation sector by less than 1%.

 

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