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D.C. Circuit Court Upholds EPA Veto of CWA §404 Permit After Permit-Issuance

On April 23, 2013, the United States Court of Appeal for the District of Columbia upheld EPA’s authority to retroactively veto Section 404 permits. The ruling comes as a disappointment to those in the coal industry seeking the certainty and finality in the CWA §404 permit context.

 

Background

 

The permit in question was related to Mingo Logan Coal Company’s U.S. Army Corps of Engineers Permit for the Spruce No. 1 Surface Mine in Logan County, WV.  The permit was originally issued in January of 2007. EPA waited until January 13, 2011 to exercise its “veto” power pursuant to Section 404(c) of the CWA, which provides EPA the authority to “prohibit the specification (including the withdrawal of specification)” of waters of the U.S. as a disposal site for fill material “whenever [it] determines…that the discharge…will have an unacceptable effect….” In exercising its “veto” power, EPA claimed valley fills associated with the mine will have adverse impacts on downstream water quality, which will in turn cause unacceptable impacts on aquatic life. However, all discharges of water from the fill area are regulated by an NPDES permit. That permit was issued by WVDEP after EPA withdrew objections to it years ago. The veto marked only the 13th time since 1972 that EPA had used its Clean Water Act veto authority, and the first time EPA had ever vetoed a previously permitted mine. 

 

The D.C. District Court Opinion

 

Mingo Logan sued EPA in the U.S. District Court for the District of Columbia, arguing that EPA’s “veto” was improper.  On March 23, 2012, Judge Jackson of the D.C. District Court overturned EPA’s retroactive veto.  The Court applied the two-step analysis articulated in Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). The Chevron two-step test applies where a court reviews an agency’s interpretation of the statute it administers.  First, the court must determine whether Congress has spoken directly to the precise question at issue.  If the intent of Congress is clear and unambiguous, then the court must give effect to the unambiguously expressed intent of Congress, and the inquiry is over.  The second step applies where the language of the statute is found to be silent or ambiguous with respect to the specific question.  If the statute is silent or ambiguous, the Court then determines whether the agency’s interpretation of the statute is a permissible construction of the statute.

 

EPA took the position that Section 404(c) authorized it to exercise its veto at any time—even after permit issuance.  Although Judge Jackson found the language of 404(c) to be ambiguous in isolation, she found that the statutory text as a whole and the legislative history of the statute ran counter to EPA’s claim that it could “withdraw specification” after permit issuance.  Thus, Judge Jackson ruled that EPA’s interpretation failed the first step of Chevron. The Court went on to determine that, even if there were ambiguity to the language, EPA’s position also failed under step two of the Chevron analysis. Here, the Court’s analysis was complicated by the fact that the Clean Water Act provides authority to both the Corps and EPA, and in such a case there is an argument that EPA is owed no deference. However, the Judge ruled that, even according EPA some deference, EPA’s interpretation of its authority to allow it to exercise its 404(c) authority after the Corps had issued a permit was unreasonable.  The Court used a variety of strong language in discussing EPA’s interpretation, characterizing it as illogical and impractical, along with stating that EPA had resorted to “magical” thinking. 

 

Of note, the Court pointed to the various amici briefs filed expressing concern with eliminating finality from the permitting process as additional grounds for finding EPA’s interpretation to be unreasonable. It thus relied on the primary argument made by industry—certainty of a permit is a foundation of the permitting process.  The Court’s opinion is also notable for its strong language in places, making such statements as: EPA’s “reading does not exactly leap off the page” and “[t]his is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.” 

 

The Circuit Court Opinion

 

On appeal, the Circuit Court of Appeals reversed the District Court, focusing on the plain language of the statute.  The Appeals Court focused on the Oxford Dictionary definitions of two key statutory terms, “whenever” (“at whatever time, no matter when”) and “withdrawal” (“[t]o take back or away something that has been given, granted, allowed, possessed, enjoyed, or experienced”), in ruling that the CWA “imposes no temporal limit on the [EPA] Administrator’s authority to withdraw the Corps’ specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will occur.”  The Court stated that the statute’s use of the expansive conjunction, “whenever,” demonstrated Congress’s “intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.” 

 

Additionally, the Court found that the Corps “specifies” areas for fill in the final permit itself.  Thus, the Court reasoned EPA’s veto power can only be exercised post-issuance.  The Court also noted that the Corps has consistently maintained its right to exercise a post-issuance veto for approximately thirty years.  The Appeals Court rejected Mingo Logan’s arguments that EPA’s veto conflicted with: (1) the plain statutory language; (2) section 404 as a whole; and (3) the legislative history of section 404(c). 

 

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

Kentucky Wastewater Laboratory Certification Update

In response to numerous citizen suits brought by various environmental groups alleging a failure by the Kentucky Department for Environmental Protection to properly monitor and address alleged Clean Water Act violations by KPDES permit holders, the Commonwealth passed Kentucky Revised Statute 224.10.670.  The statute granted the Energy and Environment Cabinet the authority to promulgate regulations establishing a certification program and standards for the operation of laboratories relating to analyses and laboratory tests for wastewater pollution. 

The Cabinet drafted 401 KAR 5:320, establishing the Kentucky Wastewater Laboratory Certification Program.  The Division of Water has also drafted a manual, incorporated by reference in 401 KAR 5:320, establishing the technical procedures and minimum requirements of the Certification Program.  The regulation, and the incorporated manual, were recently subjected to a period of Public Comment and received a Public Hearing on April 30, 2013.  The regulation is currently scheduled to be presented to the Administrative Regulation Review Subcommittee on May 14, 2013. 

It is expected that the regulation will be finalized and promulgated in July of 2013.  Beginning July 1, 2014, any analyses and laboratory tests submitted for activities subject to the Clean Water Act must be performed by a certified laboratory and in compliance with this regulation. 

The regulation sets forth that the first year from its promulgation will consist of the granting of interim certifications upon receipt of a qualified application and an initial demonstration of capability.  Division of Water plans to conduct on-site audits of each laboratory granted an interim certification to determine whether the laboratory will be formally certified.  Following the initial audits to determine formal certification, the certified laboratories will be audited at least once every five years.  Division of Water will audit for technique on analytical methods, documentation, and quality control performance.  Additionally, the laboratories will be required to submit a Proficiency Test Samples to the Division of Water annually to retain its certified status. 

The draft regulation may be viewed at: http://www.lrc.state.ky.us/kar/401/005/320reg.htm.   The Wastewater Laboratory Certification Manual can be viewed at: http://water.ky.gov/Documents/Regulations/WW%20Lab%20Cert%20Manual%20File%20Version.pdf.  The Manual sets forth requirements relating to record-keeping, quality assurance/quality control, equipment, supplies, field sampling, analysis procedures, methodology, proficiency testing, reporting requirements, and maintaining certification. 

This article was authored by Laura P. Hoffman, Jackson Kelly PLLC. For more information on the author, see here.

EPA Issues Vapor Intrusion Guidance Documents for Public Comment

In April 2013, EPA issued the following long-awaited vapor intrusion (VI) draft Guidance Documents for public comment:

 

·         Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites.

·         OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air.

 

Both draft Guidance Documents are available at www.epa.gov/oswer/vaporintrusion/. Public comments can be submitted through May 24, 2013 at Regulations.gov (EPA-HQ-RCRA-2002-0033). 

 

As historical background, the EPA, Office of Solid Waste and Emergency Response (OSWER) issued its first draft VI guidance to evaluate the subsurface VI pathway in November 2002. In December 2009, the Office of the Inspector General (OIG) recommended that EPA’s 2002 Draft VI Guidance be updated and incorporate the following:

 

·         Updated toxicity values.

·         Multiple lines of evidence be used to evaluate VI.

·         Identify how risks from petroleum hydrocarbon vapors should be addressed.

·         How the guidance applies to Superfund Five Year Reviews (FYRs).

·         When or whether preemptive mitigation is appropriate.

·         Operations, maintenance, and termination of mitigation systems.

·         When institutional controls (ICs) and deed restrictions are appropriate.

 

In March 2011, OSWER generally agreed with OIG’s recommendations to finalize the VI guidance. Both VI draft Guidance Documents released by EPA in April 2013 reflect EPA’s efforts to address OIG’s recommendations.

 

Since EPA issued its Draft VI Guidance in November 2002, VI as a potential migration pathway for exposure to environmental contamination in subsurface soil and groundwater has developed into a, if not the, driver of potential human health risk at contaminated sites in West Virginia (e.g., brownfields, voluntary remediation, and leaking underground storage tank). Hence, in addition to soil, groundwater, surface water, and sediment environmental media that we have historically assessed and if necessary, remediated, VI now is often a major driver in the overall cost of assessment and remediation at such properties. In addition, as part of the upcoming Phase I ESA standards to be released by ASTM during the second half of 2013, the VI pathway will now require evaluation as part of establishing the various liability protections available under Superfund.

 

While assessing and remediating environmental contamination associated with soil, groundwater, surface water, and sediment has been occurring since at least the early 1980s in the United States, VI is a relatively new contaminant pathway of concern that has really only come into its own since the early to middle 2000s. So, for those who are not familiar with the concept of vapor intrusion, EPA provides the following definition of VI:

 

“Certain hazardous chemicals that are released into the subsurface as liquids or solids may form hazardous gases (i.e., vapors) that migrate through the vadose zone and eventually enter buildings as a gas by migrating through cracks and gaps in basement floors and walls or foundations, including perforations due to utility conduits and any other openings (e.g., sump pits). Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater, through the vadose zone and into indoor air. Vapor intrusion can occur in a broad range of land use settings, including residential, commercial, and industrial, and affect buildings with virtually any foundation type (e.g., basement, crawl space(s), or slab on grade). Vapor intrusion is similar to radon intrusion in that mechanisms of subsurface vapor migration and soil gas entry into buildings are similar for radon and volatile, hazardous chemicals of concern to EPA’s programs.”

 

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

EPA Proposes Adding 255 Additional Streams to WV DEP's Impaired Water List

The Environmental Protection Agency (EPA) has informed the West Virginia Department of Environmental Protection (WVDEP) that it will modify the state's list of impaired waters that it sent to EPA pursuant to Section 303(d) of the Clean Water Act.  EPA will add 255 streams to the state's proposed list of 1,176 impaired waters.  At issue is the extent to which WVDEP must follow EPA dictates in compiling its lists of streams considered “biologically impaired” as a result of supposedly violating State “narrative” water quality standards.

The Clean Water Act requires that every two years states identify water bodies that do not meet water quality standards.  This list must then be sent to the EPA for review and approval.  EPA and the states will then work together to clean up the impaired waterways. The lists include both  streams in which numeric standards for substances like iron are exceeded and streams which are considered  “biologically impaired”  because they violate  “narrative” standards , which generally prohibit “significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems.”

 WVDEP, like many other states, has long used an index based on aquatic insect populations as the sole means of listing streams as biologically impaired. The index, known as the West Virginia Stream Condition Index (WVSCI) does not identify causes of impairment or even whether they may be related to a discharge of a pollutant---removal of forest canopy, increases in flow from paved areas and the like are all capable of influencing the WVSCI score. Nor has the WVSCI ever been subjected to rulemaking by WVDEP or submitted to EPA as a “water quality standard” even though historically it has been used as the sole measure of compliance with the narrative standard.

In 2012, the West Virginia Legislature enacted Senate Bill 562, which instructed the WVDEP to develop a new, broader assessment tool for judging a water body’s compliance with narrative standards.  As a consequence of SB 562, when WVDEP submitted its most recent 303(d) list of impaired waters to EPA, it did not include 255 new streams which would have been considered impaired if the WVSCI had been used to evaluate them. The DEP cited SB 562 not to include the 255 streams in its 303(d) list, contending that the Bill precluded it from evaluating waters for aquatic life uses until the new methodology was officially adopted.

The Sierra Club responded to WVDEP’s 303(d) list by submitting to the EPA a Notice of Intent to sue, stating that the EPA failed to rule on West Virginia’s 303(d) list within the prescribed 30 day period and that the organization is required to deny the list due to DEP’s failure to list all waters not complying with narrative water quality standards.  The NOI asserted that WVDEP’s decision to stop using the WVSCI and await the new measures of compliance to be produced as a result of SB 562 constitute a change in WVDEP’s water quality standards that cannot take effect until approved by EPA.

In response to the Sierra Club’s NOI, the West Virginia Coal Association (WVCA) filed its own NOI with the EPA.  In it, WVCA argued that SB 562 could not constitute a change to the state’s water quality standards until WVDEP actually promulgated rules pursuant to SB 562.  Additionally, WVCA stated that if the EPA finds that WVDEP must obtain EPA approval for using a assessment protocol compliant with SB 562, then WVDEP was also required to obtain EPA approval before it could use its old methodology—the West Virginia Stream Conditions Index (WVSCI)—for identifying impaired streams.  As a result, EPA would then be required to reject every 303(d) list that WVDEP has submitted using the WVSCI methodology.

EPA answered by acknowledging WV DEP’s stance that SB 562 prevented it from evaluating the new streams for aquatic life uses until the new assessment methodology was adopted.  However, EPA stated it had an obligation under the Clean Water Act to include these streams in the state’s 303(d) list.  

EPA plans to issue an official federal register notice announcing its intention to add 255 streams to the DEP's impaired water list on or about April 15^th.  After notice is issued, EPA will set up a 30 day comment period before it issues its final 303(d) list for West Virginia.

For more information, visit here.

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

Supreme Court to Decide Whether Last-Minute EPA Stormwater Rule Moots Important Logging Road CWA Case

On the Friday afternoon of November 30, 2012, a mere three days before the Supreme Court of the United States was to hear oral arguments in the case of Decker v. Northwest Environmental Defense Center, the EPA announced that it was revising the ambiguous regulations at the center of the legal dispute.  EPA’s last-minute rule changes not only irked the Court, but may have also mooted the case.   

The central legal issue in Decker is whether timber companies need an NPDES water discharge permit for surface water runoff from logging roads pursuant to §402 of the Clean Water Act.  Since the 1980s, the EPA has had in place a “Silvicultural Rule” which describes both “silviculture point sources” requiring NPDES permits as well as “non-point source” activities that do not require discharge permits. The Silviculture rule listed timber harvesting and roads constructed and maintained for that purpose as non-point source activities that do not require discharge permits. 

In 1990, the EPA implemented, in two phases, stormwater regulations for discharges from “industrial activities” without defining what activities fall under the industrial label. Over the years, the timber industry in the Pacific Northwest relied upon the Silvicultural Rule as the legal basis for not securing NPDES permits when constructing roads to harvest timber and manage forest properties.  

Not surprisingly, environmentalists objected to this exclusion because precipitation that falls on forest roads across the region entrains sediment that eventually can end up in surface waters. A suit was brought in Oregon against officials of the Oregon Board of Forestry and individual companies.  The U.S. District Court dismissed the case in 2007 on the grounds that the Silvicultural Rule exempted the activity from requiring a permit.  In May 2011, the Ninth Circuit reversed, but only after the Department of Justice reversed its initial position as an amicus and conceded that the stormwater regulation was ambiguous and that the appellate court had jurisdiction to review the regulation in the context of the citizen suit challenge.  

The Supreme Court granted certiorari to review the Ninth Circuit’s decision and stated two questions for consideration.  The first of these goes to the jurisdiction of a federal court under the Clean Water Act.  The regulations at issue were adopted more than two decades ago.  Section 369 (b) of the Clean Water Act requires that challenges to a regulation or binding action of the EPA be brought within 120 days of issuance.  It was only after the Justice Department reversed its original position regarding the ambiguity of the stormwater rule that the Ninth Circuit determined that the environmental plaintiffs could bring their suit and that limitations under Section 369 (b) did not bar the action. 

The second question certified by the Supreme Court – whether the stormwater runoff is industrial stormwater notwithstanding EPA’s decision to the contrary – went to the merits of the Ninth Circuit’s decision.  It was this question that EPA effectively mooted by announcing that it was revising its stormwater regulations to clarify that the logging roads at issue are not an “industrial activity” (a term that EPA previously had never defined) for which an NPDES permit must be sought.  

What is perhaps most remarkable is the speed with which EPA acted.  It announced its intention to revise its stormwater regulation in May (77 Fed. Reg. 30473, May 23, 2012), and did not actually propose a revised regulation until September (77 Fed. Reg. 53834, September 4, 2012).  The speed with which EPA moved from proposing its regulation until it adopted it on November 30 – a mere 87 days – is almost unprecedented. 

The Supreme Court justices were reportedly displeased that the amended regulation had been issued without warning on the Friday afternoon before the Monday argument.  Chief Justice John Roberts remarked that “it’s an unusual situation for us to rule in a case where the issue has ongoing significance and that’s taken away.”  He also chastised the attorney arguing for EPA as amicus curiae: “[m]aybe in the future you could let us know when something as definite as that comes.  There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.” (http://www.scotusblog.com/?p=156106).  EPA’s counsel conceded that the release of a final rule on a Friday afternoon before a Monday hearing was “suboptimal.” 

On January 8, 2013, the Court granted a Motion to File Supplemental Brief After Argument to allow the parties to brief the issue of whether EPA’s new stormwater regulations have rendered the case moot.  The parties submitted their briefs on January 22, 2013. The government’s attorney argued that the new EPA rules did moot the suit. The environmental plaintiffs have argued that the issues are still ripe, but have asked for the case to be remanded to the Ninth Circuit in light of the new rules.  

Regardless of whether the case is now moot, EPA appears to have opened a right of review for environmental plaintiffs that previously had been denied to them under the strict time limits imposed by Section 369 (b) of the Clean Water Act.  Moreover, it has clearly adopted a new regulation that may be challenged should the citizen plaintiffs so choose. 

Welcome to the second term of the Obama Administration. 

You may contact Blair Gardner (304-340-1146) or Aaron Heishman (304-340-1048) in Jackson Kelly’s Charleston office for further information about this case.

EPA Issues New Recreational Water Quality Criteria Recommendations

EPA has recently released its 2012 recreational water quality criteria (RWQC) recommendations for protecting human health in all coastal and non-coastal waters, which have been designated for primary contact recreation use. EPA has provided states with two sets of recommended water quality criteria for states to adopt into water quality standards. 

The two sets of recommendations are merely guidance to states in their development of water quality standards to protect swimmers, surfers, boaters, etc. from water that has been exposed to fecal contamination. The recommendations do not act as binding regulations on their own, and states are free to adopt other defensible water quality criteria that differ from EPA’s recommended criteria. 

EPA has the authority to issue such recommendations under the Clean Water Act. The last time RWQC recommendations were issued by the EPA was in 1986. 

The new RWQC, issued in 2012, rely on research and studies which show a connection between illness and fecal contamination in recreational waters. The criteria are based off of the use of two main indicators of fecal contamination, E. coli and enterococci. 

The 2012 RWQC contains two sets of numeric concentration thresholds, either of which could be used to properly protect the public from contaminated recreational waters. The RWQC consist of three components, including duration, magnitude, and frequency. The magnitude of the bacterial indicators is described both using a geometric mean (GM) and a statistical threshold value (STV) for the bacterial samples. The recommendations are summarized below.

Recommendation One:

Enterococci: Culturable enterococci at a geometric mean (GM) of 35 colony forming units (CFU per 100 milliliters (mL) and a statistical threshold value (STV) of 130 cfu per 100 mL, measured using EPA Method 1600, or any other equivalent method that measures culturable enterococci.  

E. coli: Culturable E. coli at a GM of 126 cfu per 100 mL and an STV of 410 cfu per 100 mL measured using EPA Method 1603, or any other equivalent method that measures culturable E. coli.

Recommendation Two:

Enterococci: Culturable enterococci at a GM of 30 cfu per 100 mL and an STV of 110 cfu per 100 mL, measured using EPA Method 1600, or any other equivalent method that measures culturable enterococci. 

E. coli: Culturable E. coli at a GM of 100 cfu per 100 mL and an STV of 320 cfu per 100 mL measured using EPA Method 1603, or any other equivalent method that measures culturable E. coli.

For more information on EPA’s 2012 Recreational Water Quality Criteria Recommendations, please visit the EPA’s website here. 

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

Sierra Club Threatens to Sue EPA over West Virginia’s Failure to Use Genus Level Aquatic Insect Index to Identify Biologically Impaired Streams

On January 25, 2013, the Sierra Club, West Virginia Highlands Conservancy, and Ohio Valley Environmental Coalition submitted a 60-day Notice of Intent to sue the Administrator of the U.S. Environmental Protection Agency for allegedly violating her non-discretionary duty under the Clean Water Act to approve or disapprove West Virginia’s list of impaired streams in a timely manner, and arguing that EPA must reject the list in part because the West Virginia Department of Environmental Protection did not use the proper protocol in identifying biologically impaired streams.

Background

Streams identified as “biologically impaired” are placed on the Clean Water Act Section 303(d) list of “impaired” waters for which WVDEP must prepare a “pollution diet” known as a Total Maximum Daily Load (TMDL).  The term “biological impairment” is shorthand for conditions considered to constitute a violation of West Virginia’s so-called “narrative” water quality standard.  The operative parts of that standard provide:

[T]he following general conditions are not to be allowed in any of the waters of the state.

3.2.e.     Materials in concentrations which are harmful, hazardous, or toxic to man, animal or aquatic life;

3.2.i.      Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

WVCSR §§ 47-2-3.2.e & 3.2.i. 

 

For years, WVDEP has used the West Virginia Stream Condition Index (WVSCI), an index that relies on pollution- and disturbance-intolerant aquatic insects, as the sole determinant of 303(d) listing decisions for “biological impairment.” EPA, on the other hand, has advised WVDEP that it should use a more “finely tuned” index that would add more streams to the 303(d) list.  The WVSCI looks at insects at the “family level.”  EPA and the Sierra Club contend that WVDEP should use a “genus level” index which amplifies the importance of highly sensitive insects.

WVDEP has announced that it will no longer mechanistically apply the WVSCI, and last year, the West Virginia Legislature passed Senate Bill 562, which amended the state Water Pollution Control Act by directing WVDEP to propose rules measuring compliance with the biologic component of the narrative standard by evaluating the “holistic health of the aquatic ecosystem,” rather than focusing solely on an insect index. See W. Va. Code §22-11-7b(f). WVDEP has not yet proposed any rules.

Also at issue is the role of “conductivity”—the electrical conductance caused by the ions associated with elevated levels of total dissolved solids frequently seen near any major earth disturbing activity, including mining.  The Sierra Club and EPA have contended that these ions are contributing to low WVSCI scores and that the TMDLs, which must be developed after a 303(d) listing, must require treatment to remove total dissolved solids—treatment that is prohibitively expensive.  WVDEP has listed hundreds of streams as biologically impaired, and in a few cases has further identified “ionic toxicity” as a contributor to the impairment.  To date, however, it has declined to prepare TMDLs for “ionic toxicity,” claiming that it has not yet identified the particular ions at fault or the appropriate thresholds for controlling them.  The Sierra Club has been independently filing citizen suits against mine operators arguing that they are violating the narrative standards at these locations and have an obligation to treat conductivity.

Contents of the New Notice of Intent to Sue

Against this backdrop, the new Notice of Intent (NOI) to sue EPA makes the following arguments:

1.        WVDEP submitted its 2012 303(d) list to EPA on December 21, 2012, and EPA had 30 days to approve or disapprove the list, but has failed to act in a timely manner. 

2.        WVDEP’s Senate Bill 562, passed last year, was effectively a change to WVDEP’s water quality standards that WVDEP was required to submit to EPA for approval.

3.        EPA must disapprove WVDEP’s 303(d) list as submitted because:

a.        The list does not identify all biologically impaired waters.  Here, the Sierra Club notes that the current proposed 303(d) list advises that “in response to the legislation [SB 562], DEP is not adding new biological impairments to the 2012 303(d) List.”  This failure, according to the Sierra Club, means that WVDEP has failed to identify 173 streams that are biologically impaired under the WVSCI standard. 

b.         By refusing to place new streams on the list [presumably using the WVSCI] based on SB 562, WVDEP has illegally changed its water quality standards without EPA approval. 

c.         WVDEP has unlawfully declined to use a genus-level protocol for evaluating biological impairment.  The Sierra Club claims that WVDEP would have added 546 streams to the 303(d) list if a genus-level protocol had been used in lieu of the WVSCI.

d.        WVDEP has used a statistically invalid method to inflate the WVSCI score necessary for identifying biological impairment.  The WVSCI considers streams with scores of 68 and above as meeting the narrative standard and scores of 60.6 and below as “impaired.”  Historically, it has only placed streams on the 303(d) list if the score is 60.6 or lower.  WVDEP considers the zone in between 60.6 and 68 to be a “gray zone,” because of the variability that can be shown by any two WVSCI scores taken at the same time and place.  The Sierra Club argues that any stream with a score below 68 should be listed as impaired.

4.        WVDEP’s exclusion of new streams from the 303(d) list based on its failure to apply the WVSCI or a genus-level approach eliminates required protection for these additional streams.  Sierra Club argues that conductivity and sulfates are the primary culprits in biological impairment and that WVDEP’s new list is allowing the mining industry to escape scrutiny.

At issue here is who gets to identify the conditions that constitute compliance with a State’s narrative water quality standard and what tools must they use. The NOI states that if EPA does not remedy its alleged failures within 60 days (by March 26, 2013), Sierra Club will file suit against EPA.

A link to the NOI can be found here.

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

Eastern District of Kentucky: SMCRA May Not Be Used to Circumvent the CWA

On January 11, 2013, Judge Van Tatenhove, federal District Court Judge for the Eastern District of Kentucky, granted summary judgment to ICG Hazard, LLC on Counts Three, Four, and Five of Sierra Club’s Complaint in Civil Action No. 11-148-GFVT.  For a discussion of Judge Van Tatenhove’s September 30, 2012 Memorandum Opinion and Order, in which he granted summary judgment on Counts One and Two, see http://eem.jacksonkelly.com/2012/10/federal-district-court-upholds-applicability-of-cwa-permit-shield-to-general-permits-for-coal-indust.html.  

In the September 30, 2012 Order, the Court denied both parties’ motions for summary judgment with respect to Counts Three, Four, and Five of Sierra Club’s complaint.  The Court was not clear that the allegations (of violations of water quality standards) were tied to “point source” discharges.  The Court suggested that there may be contributions to violations of water quality standards caused by non-point sources which are not regulated under the NPDES program and which, as a result, could be susceptible to a SMCRA-based citizens suit.  Subsequently, however, the Sierra Club clarified that all of its claims related solely to “point source” discharges and that there were no claims made as to “non-point” discharges. As a result, the Court granted ICG Hazard, LLC summary judgment on all remaining claims and reiterated that SMCRA may not be used to circumvent the protections afforded NPDES permit holders by the CWA:  

Section 702 of the SMCRA (30 U.S.C. §1292) states that nothing in the SMCRA “shall be construed as superseding, amending, modifying, or repealing” the CWA, among other statutes. Thus, SMCRA-based regulations are only allowed where there are regulatory gaps in the CWA.  As to point source discharges, the CWA clearly regulates, undermining any effort to bring a claim premised on a violation of the SMCRA. See In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1366-69 (D.C. Cir. 1980) (explaining the relationship between the CWA and the SMCRA). 

The Court also reaffirmed its rejection of Sierra Club’s attempt to use SMCRA to enforce water quality standards against an NPDES permittee: 

In other words, as between these two parties in an enforcement action, effluent limitations for point source discharges established pursuant to the CWA’s regulatory scheme supersede the SMCRA’s water quality standard requirements. Water quality standards formed the basis for the effluent limitations and then effectively “dropped out.” To hold that water quality standards for point source discharges are subject to enforcement would modify and/or supersede the CWA in a manner that would violate §702 of the SMCRA. 

See [Link to Opinion]. 

The Court also entered its final Judgment.  See [Link to Final Judgment].  The Court’s opinions confirm that CWA Section 402(k)’s “permit shield” provision affords permit-holders the certainty of knowing that compliance with the terms of their permits will shield them from legal actions such as this, which essentially challenge the stringency of the underlying NPDES permit.  Importantly, the Court rejected Sierra Club’s attempts to use SMCRA as a “back-door” means of enforcing CWA water quality standards, despite the fact that the water quality standards had, as the Court recognized, “dropped out” after numerical limits had been established.  

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

Court Rejects EPA’s Attempt to Set TMDL Based upon NonPollutant

On January 3, 2013, U.S. District Judge Liam O’Grady of the Eastern District of Virginia ruled that EPA exceeded its clearly limited statutory authority by regulating the level of a pollutant in a creek by establishing a Total Daily Maximum Load (“TMDL”) for the flow of a nonpollutant into the creek. 

The Clean Water Act requires states to maintain a list—subject to EPA approval or modification—of their waterbodies that are “impaired” because they do not meet their respective water quality criteria.  TMDLs are required to be set for any waterbody on the impaired list.  The TMDLs must be sufficient to bring the waterbody back into compliance with its water quality criteria. Each TMDL establishes the maximum amount of a pollutant that may be added to the waterbody daily from all sources. 

In this case, Accotink Creek, in Fairfax, Virginia, had been identified as having “benthic impairments.” Essentially, the community of organisms living on or near the bottom of the creek were not as numerous or healthy as they should be. To remedy this, EPA was required to set a TMDL to improve the health of the benthic community. The TMDL was designed to regulate the amount of sediment entering Accotink Creek, because EPA believed sediment was a primary cause of the benthic impairment. Rather than limiting the amount of sediment directly, EPA decided to limit the flow rate of stormwater, because EPA believed that stormwater flow rate was a “surrogate” for sediment. According to EPA, sediment load in the Creek was a function of the amount of stormwater runoff generated within the watershed. Thus, EPA believed that framing the TMDL in terms of stormwater flow rate was superior to simply expressing it in terms of maximum sediment load. However, stormwater runoff is not a pollutant. 

The Court examined the language of the statute at issue.  The text of the statute that requires states to establish their own TMDLs (subject to EPA approval or modification), 33 U.S.C. § 1313(d)(1)(C), states: 

Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation. 

Using the Chevron analysis, the Court determined that there was no ambiguity in the wording of the statute at issue. The statute was held to solely grant authority for EPA to establish TMDLs for pollutants. The Court refused to hold the statute as extending EPA’s authority to establishing TMDLs for nonpollutants as surrogates for pollutants. 

This ruling was a critical ruling for the Clean Water Act as the Court paid no attention to EPA’s claim that a stormwater flow rate TMDL was a better way of limiting sediment load than a sediment load TMDL. The Court refused to allow EPA to exceed its clearly limited statutory authority. 

A link to the opinion can be found here. 

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.

Time Doesn’t Matter in a Taking

The Supreme Court has determined that a compensable taking did occur when the U.S. Army Corps of Engineers periodically, but repeatedly inundated a wetlands forest by means of a controlled release from an upstream reservoir. 

The Corps owns and manages the Clearwater Dam 115 miles upstream from the Dave Donaldson Black River Wildlife Management Area a 23,000 acre forest reserve which is controlled by an agency of the State of Arkansas.  Its value to the state encompasses both ecological values from the variety of native hardwoods and wildlife habitats as well as for hunting.  Since the Corps constructed its dam in 1948, it has managed a controlled flow from the reservoir impounded by the dam on a seasonal basis as explained by a manual.  Deviations are allowed from the prescribed rates for agricultural, recreational and other purposes. 

Beginning in 1993 and continuing for the next six years, the Corps deviated from its manual to reduce water release in the fall, but substantially increase it in the spring and summer.  In that period, the frequency of inundation increased by forty percent from an average of 64 to 91 days annually.  The change in frequency adversely affected the ecology of the wetlands so that following a drought in 1999-2000, the hardwood forest suffered the loss of more than 18 million board feet in what Arkansas described as a “catastrophic mortality”.  The state brought suit in the Federal Court of Claims which awarded damages in favor of Arkansas.  On appeal, the Federal Circuit reversed, on the grounds that a taking only arises from flooding or a flowage easement only arises if the flooding is permanent or inevitably recurring. 

Writing on behalf of a unanimous Court, Justice Ginsberg disagreed and reversed.  She quoted liberally from the Court’s previous Takings Clause jurisprudence noting that it is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice to be borne by the public as a whole.” Moreover, “a permanent physical occupation of property authorized by government is a taking” and that takings temporary in duration can be compensable.”  “No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.” 

In recognizing that a temporary flooding gains no automatic exemption from takings, the Court expressed some general principles that would determine when temporary occupations could be compensable.  These include the duration of the event, “the degree to which the invasion is intended or is the foreseeable result of authorized government action, “as well as the severity of the interference.”  Because the appellate court had rested its conclusion exclusively on the temporary nature of the flooding, the Court left open those issues on remand. 

Although little new was expressed in the opinion, the Court did add clarity to the fact that even temporary occupations of property, whether by occupation or regulation, can become compensable. 

The case is Arkansas Game and Fish Commission v. United States, No. 11-597.  For more information, contact Blair Gardner in Jackson Kelly’s Charleston office.