Environmental Law News

EPA Issues Revised Proposed Rule for Greenhouse Gas Emissions

Posted in Agency News, Air, Climate Change, Climate Change and Greenhouse Gases, EPA

EPA has withdrawn its previous rule issued
April 2012 and  released its revised proposed rule
concerning greenhouse gas emissions
for electric utility generating units.
79 Fed. Reg. 1429 (Jan. 8, 2014).  

The revised rule would require carbon capture and storage for steam generating units fired by coal and petroleum coke.  Performance standards for natural gas-fired units are based on combined cycle technology.  EPA will hold a public hearing in Washington, D.C. on January 28, 2014.  Comments on the rule are due by March 10, 2104.

When Is a Rail Car a Clean Water Act Point Source?

Posted in Natural Resources, Transportation, Uncategorized, Water

The U.S. District Court in Washington has denied a railway company’s motion to dismiss a Clean Water Act citizen suit that alleges the defendant’s rail cars are point sources for the discharge of coal pollutants into waters of the United States.  BNSF Railway Company (“BNSF”) operates a common carrier railroad throughout much of the United States and Canada.  BNSF’s trains carry coal from Montana and Wyoming through Washington state.

The Sierra Club and other environmental advocacy groups sued BNSF for alleged discharge of coal pollutants into waters of the United States.  BNSF moved to dismiss the complaint and argued that its rail cars and trains do not constitute point sources within the meaning of the Clean Water Act (“CWA”) and the facts as alleged in the complaint.  The U.S. District Court for the Eastern District of Washington has denied BNSF’s motion.  Sierra Club v BNSF Ry. Co, No. 13-cv-272, 2014 U.S. Dist. LEXIS 1035 (E.D. Wash., Jan. 2, 2014).

Plaintiffs alleged that BNSF violates the Clean Water Act when coal that escapes from rail cars during transport, loading, and unloading is discharged into waters of the United States.  Arguments before the court addressed whether the coal-based pollutants fell from the rail cars onto land and then were washed by precipitation into waterways or whether the pollutants were discharged directly into water.

The court reviewed case precedent concerning the scope of sources that may be considered point sources under the CWA and denied the motion to dismiss, stating that Plaintiffs have the opportunity to develop facts regarding their allegations and that,

“Plaintiffs will need to show that BNSF’s railway illegally introduced pollutants into navigable waters without a permit.”

The results of this case may affect how common carriers may be found liable for Clean Water Act violations by transport, loading, and unloading of materials.  Watch this Blog for future developments.


Court Finds a “Significant Nexus” in Virginia Wetlands Case

Posted in Water

The U.S. District Court for the Eastern District of Virginia has held that the U. S. Army Corps of Engineers (“Corps”) presented evidence of a significant nexus between a suspected wetland and a navigable body of water, the Northwest River.  Precon Development Corp. v. U.S. Army Corps of Engineers, No. 2:08-cv-447, 2013 U.S. Dist. LEXIS 164612 (E.D. VA Nov. 18, 2013).  The decision came on cross motions for summary judgment after remand from the Fourth Circuit Court of Appeals and reconsideration by the Corps.  The court’s decision turned on evidence of the condition of the affected navigable water, the flow of tributaries from the suspected wetlands to the navigable water, and the important functions that wetlands have with regard to the river.

Continue Reading

Clean Water Act Citizen Suit Requires Notice

Posted in Federal, Water

In spite of an apparent statutory exception, the 11th Circuit Court of Appeals has held that the 60-day notice requirement of the Citizen Suits provision of the Clean Water Act, 33 U.S.C. § 1365, applied in the case of Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Case No, 12-15409, (11th Cir. Nov. 13, 2013).

Plaintiffs sued an Alabama coal mining company for alleged violations of new source performance standards.  Section 1365(b) provides that the usual 60-day notice period for a citizen suit is not required for actions concerning new source performance standards.

Both the District Court and the Eleventh Circuit Court of Appeals sided with the defendant and held that the notice period was required because the defendant’s NPDES permit incorporated the performance standards and, therefore, the permit was integral to the suit.  The 11th Circuit stated: “To allow a citizen to evade the 60-day waiting period by suing a permit holder for alleged violations of the new source performance standards without regard to the conditions of the discharger’s permit would both undermine the overarching permitting scheme and nullify the statutory preference for governmental enforcement.” Opinion at 14.

New Rule on Waters of the United States

Posted in EPA, Federal, Kentucky, Tennessee, Water

The new proposed rule on Waters of the United States to clarify the jurisdiction of the Clean Water Act is moving closer to release for public comment.  Bloomberg BNA released an early description of the rule.   A link in the first paragraph of that article takes you to a draft copy of the rule, which has not yet been officially released for comment.

The related technical report document on Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence can be found at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345.

The Scientific Advisory Board is scheduled to meet December 16 – 18, 2013, to review comments on the Connectivity of Streams report.  According to Bloomberg BNA, EPA does not plan to release the proposed rule until the board completes peer review of the study.

EPA Reports on The Importance of Water to the U.S. Economy

Posted in Agriculture and Food, EPA, Sustainability, Sustainability Policy, Water
Water and Economy Cover Page


EPA issued a new report synthesizing initial analyses on the broad impact that water quantity, quality, reliability, location, and timing have on our nation’s economy.  The report is relatively short (less than 30 pages), but the EPA’s resource web page has links to the technical report document and research studies that have been developed as part of the effort.

The topics of the expert papers range from the impact of water values on typical industrial sectors to water’s role in agriculture, employment, and urban growth.

Using data from the USGS, the report shows that the vast majority (at least 83%) of water withdrawn from surface and groundwater sources is used either for production of food or in the generation of thermoelectric power.

Water’s fundamental role in many facets of our lives has an impact of several trillion dollars.  However, before meaningful decisions can be based on such economic value data, we must develop better information gathering and analyses.


Pollutants from Poultry Operation Exempt from Clean Water Act Permit

Posted in Agriculture and Food, Water

A U.S. District Court in West Virginia has issued an order clarifying the extent of the Clean Water Act’s exemption for agricultural stormwater.  Alt v. EPA, Case No. 2:12-cv-00042, N.D. W.V. (Oct. 23, 2013).

The case concerned EPA’s issuance of Findings of Violation and Order for Compliance under the Clean Water Act that alleged the operator of an 8-house poultry operation (a concentrated animal feeding operation or CAFO) had “discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating runoff without having obtained an NPDES permit.”  The operator of the facility challenged the actions in the U.S. District Court for the Northern District of West Virginia.

The operator introduced evidence that the entire poultry operation was under cover so that manure, feed, and other materials associated with the operation were not exposed to precipitation.  However, some particles of manure and litter had been tracked out of the poultry houses, and the exhaust fans had carried bits of feathers, dander, manure, and litter out of the houses.  The facts were not in dispute. Instead, the case turned on interpreting the application of the Clean Water Act’s exemption for agricultural stormwater.

After full briefing by the parties, the court  issued an order holding that

litter and manure which is washed from [a] farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirements of the Clean Water Act.

Alt v. EPA Memorandum Opinion & Order

Sports and Sustainability: An Alliance to Cheer About

Posted in Agency News, Climate Change, EPA, Sustainability

We here at Environmental Law News are enthusiastic about both sports and sustainability. Imagine our excitement when we learned that the U.S. Environmental Protection Agency recently unveiled a new online Green Sports Resource Directory that can help teams, venues, and leagues save money and reduce carbon pollution through increased energy efficiency, a key part of President Obama’s Climate Action Plan. (We posted about the Climate Action Plan in June in this entry.)

The new directory contains information that can help teams reduce waste and gain recognition for their programs that reduce the environmental impact of their events. U.S. EPA Deputy Administrator Bob Perciasepe made the announcement during the third annual Green Sports Alliance summit in New York City last week.

“As a founding partner of the Green Sports Alliance, EPA is committed to working with its members to help teams and sports venues green their operations, and engage fans,” said Deputy Administrator Perciasepe. “EPA’s new Green Sports Resource Directory will provide easy access to information on Agency tools and programs along with success stories to serve as examples of what can be achieved with a winning game plan for going green.”

Currently, the Green Sports Alliance has more than 180 members and is working with more than 75 teams at both the professional and collegiate levels and over 100 stadiums and sports venues across the country, with participation increasing daily. This week’s Summit includes a number of EPA speakers as well as leaders from across the sports community who recognize the potential for real environmental benefits from greening sports events and venues, and the potential for teams to inspire fans to adopt greener practices in their daily lives.

The Green Sports Resource Directory brings together Agency resources to support teams and their fans, stadiums, and venues, who want to improve their waste management, water and energy conservation, and other sustainability efforts.

EPA compiled a Green “Scoreboard” that highlights a number of winning efforts across numerous sports leagues and some statistics on the environmental and saving benefits.

Bill Penny: Chair of the ABA’s Section of Environment, Energy, and Resources

Posted in Agency News, Energy, Federal, Natural Resources, Tennessee

We here at Environmental Law News are pleased to report that our colleague, William L. (Bill) Penny, is the new chair of the American Bar Association’s Section of Environment, Energy, and Resources (SEER). He is the first Tennessean to lead this prestigious legal professional membership group. His tenure as chair began during the ABA Annual Conference earlier this week.

A longtime Nashville resident and native Tennessean, Bill has practiced environmental law and litigation for more than 30 years and is a member of Stites & Harbison’s Environmental, Natural Resources, and Energy Service Group.

His previous ABA SEER positions include vice chair, chair-elect and budget officer.  He will serve as chair through July 2014.

“The practice of environmental, energy and resources law continues to evolve as we encounter new environmental and political challenges,” said Bill. “Lawyers are now practicing in the areas of climate change and sustainability, which were only conceptual areas of law a few years ago. While the mainstream environmental practice will continue, our ABA section will review, evaluate and position ourselves to meet the needs of an ever-changing legal environment, locally, nationally, and internationally.”

Active in all levels of bar associations, Bill served as the first chair for the Tennessee Bar Association’s Environmental Law Section, and the first chair for the Nashville Bar Association’s Environmental Law Committee.  Internationally known, he recently addressed the Canadian Bar Association’s National Environmental, Energy ,and Resources Law Section in Yellowknife, Northwest Territories, on environmental energy and resources legal issues in the United States.

Bill also served as general counsel for the Tennessee Department of Environment & Conservation. He teaches Environmental Law and Administrative Law at The Nashville School of Law, is an avid bluegrass fan and a self-described “rabid” University of Tennessee football fan.  He has been repeatedly featured in The Best Lawyers in America, Chambers USA, Mid-South Super Lawyers, and other national and international rating services.

We are proud to call Bill a friend and colleague, and look forward to following his incredible work in this important leadership position–and of course, we’ll share it all with you here. Stay tuned!

AWMA – Presentation on Re-Definition of Solid Waste

Posted in Air, EPA, Federal, Waste

The Air & Waste Management Association’s Southern Section Annual Meeting is being held today in Nashville. Greg Young moderated a panel discussion on EPA attempts to re-define solid waste. Clark Spoden was a panel speaker, joined by Robert Nakamoto and Rick Whitson of TDEC and Janet Evans of Eastman Chemical Company. A copy of their PowerPoint presentation is here.

As we have mentioned before, the EPA’s proposed rule could have huge impacts on most industries. Today’s presentation highlighted significant problems with EPA’s proposed rule. Regulators on the panel discussed serious defects in EPA’s purported basis for the proposed rule, and acknowledged uncertainty as to how to even implement and enforce the new proposed rule. Clark and Janet voiced concerns on behalf of industry as to the draconian nature of the proposed rule, compliance risks and potential legal challenges.