Environmental Law News

Environmental Law News

DC Circuit Holds that EPA Can Withdraw Mining Permits

By Corinne Martin on Posted in EPA, Federal, Water

On April 23, 2013, the D.C. Circuit reversed the district court in Mingo Logan Coal Co. v. EPA, stating that the agency has the power to retroactively veto and withdraw coal mining permits.

At issue was a Section 404 permit issued in 2007 by the U.S. Army Corps of Engineers (the Corps) that allowed the Spruce No. 1 Mine in West Virginia to discharge material into three nearby streams and tributaries. EPA has veto authority over those Clean Water Act (CWA) Section 404 permits issued by the Corps. (For more on this interagency interplay, see Blaine Early’s post, Court Strikes Policies of EPA and Corps of Engineers on Mining-Related Permits.)However, despite raising concerns about the Spruce Mine permit in 2006, EPA allowed it go forward without objection.

In September 2009, EPA wrote the Corps that it planned to revoke or modify the permit, based on new information, particularly related to downstream water pollution. EPA officially withdrew parts of the permit allowing discharges into two of the three streams and their tributaries in January 2011 because of significant expected environmental and health effects of the pollution.

It was the first time EPA has used the veto authority retroactively and the move prompted negative reactions from the mining industry.

The district court had issued a ruling last March that harshly criticized EPA for overstepping its legal bounds when it withdrew parts of the already-issued permit. The appellate court panel, however, read the CWA differently, stating that the Act “does indeed clearly and unambiguously give EPA the power to act post-permit.” Moreover, the CWA gives EPA the power to prohibit or withdraw any part of a Corps’s permit allowing discharges, or to prohibit or withdraw an area from being available for discharges. Further, the decision points out that there is no time limit on that authority.

Relying on rather straightforward statutory interpretation, the court held that Section 404 of the CWA imposes no temporal limit on the EPA administrator’s authority to withdraw the Corps’s specification but instead expressly empowers the administrator to prohibit, restrict, or withdraw the specification “whenever” he or she makes a determination that the statutory “unacceptable adverse effect” will result. 33 U.S.C. § 1344(c).

Mingo Logan had argued, among other things, that legislative records make it clear that Congress did not mean to allow EPA to withdraw a permit after it had already been granted. The D.C. Circuit was not persuaded by these arguments.

The case will now return to the district court for a decision on the merits. The district court will also have to decide the merits of a challenge brought under the Administrative Procedures Act by Mingo Logan to the district court’s final decision. The appellate court held that that issue was not clearly resolved in the record presented and thus, it was remanded to the district court to be addressed in the first instance.

Happy Earth Day 2013

By Corinne Martin on Posted in EPA, Natural Resources, Sustainability, Sustainability Policy

Happy Earth Day 2013!

April 22, Earth Day, is a day dedicated to increasing awareness and appreciation of environmental issues around the world.  Want to know more about its origins? Check out this article on How Earth Day Got Its Start, plus Bill Penny’s post with a good history of the day.

Earth Day events are coordinated globally by the Earth Day Network.  The EPA has a dedicated Earth Day page with great resources for those interested in learning more and taking action.

EPA Solicits Public Input on Draft Final Guidance Documents on Vapor Intrusion

By Corinne Martin on Posted in CERCLA, EPA

Earlier this week, U.S. EPA’s Office of Solid Waste and Emergency Response (OSWER) issued draft final guidance documents on vapor intrusion. The public has until May 24, 2013 to provide input at Regulations.gov (EPA-HQ-RCRA-2002-0033).

Vapor intrusion generally occurs when there is a migration of volatile chemicals from contaminated groundwater or soil into an overlying building. Volatile chemicals can emit vapors that may migrate through subsurface soils and into indoor air spaces of overlying buildings in ways similar to that of radon gas seeping into homes. Volatile chemicals may include volatile organic compounds, select semivolatile organic compounds, and some inorganic analytes, such as elemental mercury, radon, and hydrogen sulfide.

The first guidance document, OSWER Final Guidance For Assessing And Mitigating The Vapor Intrusion Pathway From Subsurface Sources To Indoor Air, is comprehensive, presenting the current technical and policy recommendations regarding indoor air contamination arising from subsurface-source vapor intrusion. It is intended for use at any site being evaluated by EPA under CERCLA, RCRA, EPA’s brownfield program, or corresponding state authorities. This document may be of interest to revitalization stakeholders concerned about vapor intrusion, including property  owners, municipalities, and real estate developers, in addition to scientists, engineers, and attorneys.

Petroleum hydrocarbons behave differently than chlorinated hydrocarbons in the subsurface and these differences can influence whether there is a potential for vapor intrusion to occur. So there is a second guidance document, Guidance For Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites, focusing on investigations and assessments at petroleum contaminated sites where vapor intrusion by petroleum hydrocarbons may occur.

EPA OFFICIALLY WITHDRAWS NUMERIC NUTRIENT EFFLUENT LIMITS FOR CONSTRUCTION AND DEVELOPMENT POINT SOURCE DISCHARGES

By Bill Penny on Posted in EPA, Federal, Water

EPA has finally thrown in the towel over trying to establish a one-size-fits-all numeric turbidity effluent limitation for construction stormwater sites.  EPA’s final effluent guidelines for construction and development was promulgated on December 1, 2009 (74 FR 62995, Dec. 1, 2009).  The rule has had a “stormy” lifetime.

After it bacame clear that EPA was having trouble defending its new numeric effluent limits for turbidity in Wisconsin Builders Association, et al. v. EPA, Case Nos. 09-4113-10-1248 and 10-1876 (7th Cir.), EPA agreed to stay the numeric limits and issued a rulemaking notice to that effect on November 5, 2010.   Though it tried to bring it back once it had a scientific justification, EPA has now given up.  On Monday, April 1, the U.S. Environmental Protection Agency officially withdrew its numeric effluent limit for turbidity as part of a proposed rule.  As part of the proposed rulemaking, EPA is also asking for comment on a number of other parts of the ELG that actually went into effect with the December 2009 guidelines.  These changes include:

  • “Infeasible” means not technologically possible, or not economically practicable and achievable in light of best industry practices (previously defined only in preamble);
  • Control stormwater volume and velocity to minimize soil erosion in order to minimize pollutant discharges (rather than minimize soil erosion);
  • Control stormwater discharges, including both peak flowrates and total stormwater volume, to minimize channel and streambank erosion in the immediate vicinity of discharge points (rather than downstream);
  • Provide and maintain natural buffers around waters of the United States (rather than surface waters), direct stormwater to vegetated areas and maximize stormwater infiltration to reduce pollutant discharges (rather than increase sediment removal), unless infeasible;
  • Minimize soil compaction. Minimizing soil compaction is not required where the intended function of a specific area of the site dictates that it be compacted. Unless infeasible, preserve topsoil. Preserving topsoil is not required where the intended function of a specific area of the site dictates that the topsoil be disturbed or removed (recognizes incidences where not all soil will need to be compacted or preseved).

These changes appear to recognize the need for more flexibility and reliance on good engineering practices.  EPA is accepting comment on those and other changes until May 31, 2013.

 

 

 

 

Tennessee AG Opines on Valuation of Property Generating Electricity from ‘Green’ Energy Sources

By Corinne Martin on Posted in Energy, Solar Energy, Sustainability, Sustainability Policy, Tennessee

Two recent opinions from the office of Tennessee’s Attorney General defend the constitutionality of proposed amendments setting forth guidelines for “establishing lower values for property that generates electricity using geothermal, hydrogen, solar, or wind energy sources due to the intermittent nature of these energy sources that results in a restricted use of the property.”

As evident by the language chosen for the amendments, the General Assembly seeks to encourage the generation of electricity from alternative energy sources “to promote North American energy independence and to conserve limited natural resources.” Tenn. Att’y Gen. Op. 13-19 (Mar. 11, 2013). Nonetheless, the state legislature remains skeptical of its value because of “the uncertain or intermittent nature of green energy sources and the fact that net operating income from such property is affected by unusual market conditions.” Tenn. Att’y Gen. Op. 13-28 (Mar. 26, 2013).

Tennessee’s Attorney General has previously opined that Tenn. Code Ann. § 67-5-601(e) “provides a credible rationale for setting the value of property at ‘one- third of its total installed costs’ because of its restricted use.” Tenn. Att’y Gen. Op. 12-102, at 3 (Nov. 1, 2012). This opinion further observed that “the statute instructs local assessors to take this rationale into account in appraising the property, but it does not impose an absolute cap on the appraisals.” Id. The principle that a restriction on the use of property may affect its valuation for purposes of ad valorem taxation was recognized in Marion County v. State Board of Equalization, 710 S.W.2d 521, 523 (1986) (upholding Greenbelt valuation methodology). The Attorney General carries forward this same reasoning in the March 2013 opinions.

These opinions and the underlying amendments give glimpses into the state’s treatment and valuation of alternative energies for the generation of electricity in Tennessee. They raise the question of how such language and rationale will be viewed as technological advancements in the green-energy arena continue. We will continue to follow this area of the law and provide you with updates.

Iowa Cities Win Appeal of EPA Wastewater Rule

By Corinne Martin on Posted in EPA, Water

On Monday, a three-member panel of the Eighth Circuit Court of Appeals unanimously struck down two Environmental Protection Agency wastewater treatment rules challenged by a group of Iowa cities. The rules would have forced cities across the country to spend billions of dollars if the court had upheld them. According to court documents, the EPA had estimated that complying with the blending requirements alone would have cost cities across the country $150 billion in new equipment and wastewater storage systems. Specific to the plaintiffs in this case, compliance would have cost Des Moines between $80 million and $200 million, Ottumwa up to $60 million, and Davenport about $250 million.

One rule affects the way that cities mix water to dilute bacteria levels before it is released into streams and lakes. Court documents stated that since 1994, the EPA has allowed cities to incorporate bacteria mixing zones to help control pollutants in water that is eventually released.

The other challenged rule addresses how cities blend wastewater from two different treatment processes during heavy rain events when their facilities are sometimes overwhelmed with water flow. The EPA had established policies of allowing blending in the early to mid-2000s.

In 2011, the Iowa League of Cities, which represents more than 870 cities in Iowa, contacted U.S. Senator Chuck Grassley for help in clarifying the EPA rules. Responses that Grassley received in two letters from the EPA became the basis of the legal challenge.

In its letter regarding the first rule, the EPA stated that mixing zones should not be permitted in areas where swimming or other body contact is allowed with water. In its letter regarding the second rule, the agency said that it restricts the use of systems that blend water from different treatment systems within a city’s wastewater treatment facility.

The court concluded that the EPA essentially created new limitations on state regulators and cities without first notifying the public of a change or accepting comment and stated that the letters had the effect of creating “a new legislative rule” in violation of proper rulemaking procedure. The court also found the EPA exceeded its legal authority granted in the Clean Water Act with that rule.

Thus, the court held that the EPA’s policies should be vacated because they were implemented without appropriate notice and opportunity for public comment. At its essence, the case reaffirmed the rule of law and reinforced the notion that the EPA must follow proper rulemaking procedure and other laws, rather than circumvent them by making rules by letter.

According to the U.S. Department of Justice, fielding questions on behalf of the EPA following the court’s ruling, the government is “currently reviewing the decision and would have no comment at this time.”

FTC Approves First Settlement Under the Revised Green Guides: Implications for Other Marketers

By Corinne Martin on Posted in Green Building, Green Infrastructure, Sustainability, Sustainability Policy

On March 6, 2013, the Federal Trade Commission approved final orders settling charges that Sherwin-Williams and PPG Architectural Finishes had made false and unsubstantiated claims that some of their paints contained zero volatile organic compounds (VOCs) after tinting. These cases are the first applying the revised version of the FTC’s Green Guides. And while these cases and orders are tailored to the marketing of specific paints, they are also helpful in highlighting issues for anyone making environmental marketing claims, particularly “free of” claims.

VOCs are compounds of carbon capable of potentially harmful photochemical reactions at room temperature. The paint manufacturers Sherwin-Williams and PPG Architectural Finishes marketed certain paints as containing “zero” VOCs. While those statements were true for uncolored base paints, they were not true for paints that had been tinted (i.e., to which a colorant had been added). Most consumers purchase only tinted paints. The FTC found the marketing deceptive because it was not representative of how the paints were typically used.

Specifically, with regard to free-of claims, the Green Guides, as revised in 2012, advise marketers as follows:

Depending on the context, a free-of or does-not-contain claim is appropriate even for a product, package, or service that contains or uses a trace amount of a substance if: (1) the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level; (2) the substance’s presence does not cause material harm that consumers typically associate with that substance; and (3) the substance has not been added intentionally to the product. 16 C.F.R. § 260.9(c).

This “trace amount test” is designed to provide general guidance to marketers without regard to product, substance, or industry. As stated in footnote 4 of section 260.9(c), however, what constitutes a trace contaminant or background level depends on the substance at issue and requires a case-by-case analysis.

The orders tailored the Green Guides’ trace amount test in two key respects. First, the “material harm” prong specifically includes harm to the environment and human health, acknowledging that consumers find both the environmental and health effects of VOCs material in evaluating VOC-free claims for architectural coatings. Second, the orders define “trace level” as the background level of VOCs in the ambient air, as opposed to the level at which the VOCs in the paint would be considered “an acknowledged trace contaminant.” The harm that consumers associate with VOCs in coatings is caused by emissions following application. Thus measuring the impact on background levels of VOCs in the ambient air aligns with consumer expectations about VOC-free claims for coatings. (The manufacturers’ claims were considered deceptive because they exceeded background levels when applied.) In addition to approving the orders, the FTC issued a new enforcement policy statement regarding VOC-free claims for architectural coatings that addresses these points.

These cases have broader implications for marketers of products other than paints and architectural coatings, illustrating how the FTC may apply its Green Guides in future enforcement cases and the perspective that marketers must take when making claims about the environmental benefits of their products. The FTC has routinely stated that its primary concern is consumer perception. As demonstrated by these cases, marketers should be aware of how their products are being perceived and ultimately used by consumers and should evaluate their claims from those different viewpoints–that’s what the FTC will do. Further, marketers must have competent and reliable scientific evidence in support of their claims.

Comment Period for Kentucky Industrial Stormwater General Permit Opens

By Kenneth J. Gish, Jr. on Posted in Uncategorized

The Kentucky Division of Water today issued a revised draft of its proposed Industrial Stormwater General Permit, known formally as the General Permit for Stormwater Discharges Associated with Industrial Activity from “Other Facilities.”  This permit would authorize discharges of stormwater from certain industrial activities following the submittal and approval of notices of intent to seek coverage.  The prior version of Kentucky’s Industrial Stormwater General Permit expired in 2007 and has not been renewed.  Copies of the permit and fact sheet can be found at the Division of Water’s website by entering Agency Interest No. 35050.  Comments on the draft permit may be filed electronically at the following email address: DOWPublicNotice@ky.gov or via regular mail at Division of Water, Surface Water Permits Branch, 200 Fair Oaks Lane, Frankfort, Kentucky 40601.  Comments are due no later than 4:30 on March 31, 2013.

EPA Solid Waste Proposal Will Discourage Recycling

By Bill Penny on Posted in EPA, Waste

Our colleague and fellow environmental litigator, Clark Spoden, has written an interesting piece on the U.S. Environmental Protection Agency’s proposed rule on solid waste and the concerns raised by many in the regulated community about the rule’s likely effects on recycling. The article, “EPA Solid Waste Proposal Will Discourage Recycling,” includes insightful comments from various industries and regulatory agencies, including TDEC’s Division of Solid Waste Management. Check it out!

This post has been updated.