Environmental Law News

Protecting Drinking Water

Posted in Federal, Natural Resources, Sustainability, Water

The Safe Drinking Water Act is 40 years old! 

The SDWA was signed into law by President Gerald Ford on December 16, 1974.  This program regulates “at the faucet” contaminants and the delivery of water by public water systems.  It also requires those water systems to develop source water protection programs to identify and assess the risks of contamination upstream “at the source.”

But the SDWA does not, by itself, protect our water supplies.  In fact, 2014 proved how complex and precarious that protection is.  A chemical spill in West Virginia last January threatened the water supply of hundreds of thousands of citizens and sent the company responsible for the spill into bankruptcy.  Abundant algal growth in Lake Erie contaminated Toledo, Ohio’s water supply with algal toxins.  The SDWA did not prevent the ultimate causes of those problems.

I gave a presentation to the Kentucky Chamber of Commerce Environmental Permitting Conference last summer on Environmental Compliance and Drinking Water Protection.  That presentation discussed statutory and regulatory programs that protect drinking water supplies.  These programs help (1) reduce the likelihood of source water contamination; (2) provide information that public water systems may use to develop protection plans; and (3) give notice in the event of an unplanned spill or other discharge of pollutants.  None of these are fool-proof, however.

Let’s celebrate the Safe Drinking Water Act’s birthday, but at the same time keep in mind that providing safe, clean, and reliable drinking water requires diligence and is the responsibility of all of us.



Posted in Agency News, Tennessee, Water

TDEC is in the process of revising General Aquatic Resource Alteration Permits (General Permits) for a new five year term.  A meeting will be held on November 21, 2014 to solicit input from stakeholders on the revised General Permits.  The draft General Permits will be issued December 1, 2014 with the comment period scheduled to close  January 15, 2015.  The email below was sent to interested parties by email today from Water Resources Division Director Tisha Calabrese Benton:

The Department of Environment and Conservation’s Division of Water Resources is in the process of reviewing our current Aquatic Resource Alteration General Permits. The current set of 16 general permits (GP) will expire on June 30, 2015. In preparation of the reissuance of these permits the division is soliciting feedback from our stakeholders to ensure we consider our customers during the draft permit phase.  

The division issues GPs that are valid for five year terms. Coverage under these permits are used to authorize alterations to state waters for categories of activities that are substantially similar in nature, and that individually or cumulatively represent a minor impact to water resources.  We encourage you to review the current set of GPs, available on our website at http://www.tn.gov/environment/permits/arapgps.shtml

To provide both a protective and customer focused product, the division is considering changes to improve the overall clarity, structure, and format of these permits. For this effort we expect to reformat the GPs to provide a clearer description of what activities may be covered under each general permit. To reduce complexity, important conditions specific to each permit will be listed first. We are also considering new language to allow a mechanism for extending coverage past the expiration date, along with other changes to permit language and conditions to ensure authorized activities do not represent a significant loss to the state’s water resources.

The division expects to have draft permits finalized and placed on public notice by December 1st. The formal comment period will run from December 1, 2014 through January 15, 2015. Please send any initial comments or suggestions that may help the division in the development of these draft permits to Jimmy R. Smith at jimmy.r.smith@tn.gov by November 21, 2014. If you or any representative of your organization would like to meet with our staff in person, we would like to extend that opportunity as well. One option will be an informal stakeholder “listening” session on Friday, November 21st, from 10:00-12:00 in conference room D on the 3rd floor of the Tennessee Tower.  You may also wait to comment on these documents during the formal comment period. If you wish to receive notification, and are not currently on our stakeholder public notice mailing list, please submit your contact information to water.permits@tn.gov.

 The division would like to thank you for your commitment and interest in our water resources. We look forward to working with you during the development of these documents.



Tisha Calabrese Benton

Director, Division of Water Resources

Wetland Determinations Cannot be Challenged in Court

Posted in Water

The Fifth Circuit Court of Appeals has held that a court may not review a determination by the U. S. Army Corps of Engineers (“Corps”) that a particular body of water is subject to jurisdiction under the Clean Water Act because that determination is not a final agency action. Belle Company, LLC v. USACE, Case 13-30262 (5th Cir. July 30, 20140).

Section 404 of the Clean Water Act prohibits the discharge of dredged or fill materials into waters of the United States unless done in accordance with a permit issued by the Corps.  Whether a planned project involves waters of the United States is a threshold question regarding whether a 404 permit will be required.  Applicable regulations allow the Corps to issue a determination (a jurisdictional determination or “JD”) about whether water body is subject to Clean Water Act jurisdiction.

In Belle Company, two holders of interests in property planned to develop the property, but the Corps’s determination that the parcel contained wetlands hindered their plans.  When the parties sued to have the JD set aside the Corps argued that the court could not hear the case because the JD was not a final agency action.  The district court agreed and dismissed the case.

In upholding the lower court’s judgment the Fifth Circuit relied on the recent decision by the U.S. Supreme Court in Sackett v. EPA, 132 S. Ct. 1367 (2012) and held that a JD did not meet both criteria of a final action.  Although the court found that the JD was the “consummation of the Corps’s decisionmaking process,” after lengthy discussion the court held that the JD was not a final agency action because it was

“not an action by which rights or obligations have been determined, or from which legal consequences flow.”

Sackett surprised many because in that case the Supreme Court held that a compliance order issued by the U.S. Environmental Protection Agency was a final agency action that could be challenged in court.  This recent decision in Belle Company is one of a few cases winding through the appellate courts as we refine the boundaries of what constitutes a final, and reviewable, agency action.


U.S. Circuit Courts Decide Against Mining Interests

Posted in Agency News, Energy, EPA, Kentucky, Natural Resources, Water

On Friday, July 11, 2014, two U.S. Circuit Courts of Appeals issued important decisions regarding Clean Water Act permitting.  Both appeals saw the losing side supported by numerous and diverse amici.  These levels of participation in the appellate process indicate the far-reaching significance of the decisions beyond the cases’ direct application to Appalachian coal mining.

First, National Mining Association v McCarthy (formerly Jackson) concerned the oversight of EPA and the Corps of Engineers over Clean Water Act permitting for Appalachian coal mining operations.  The D.C. Circuit reversed the D.C. District Court and found that agencies’ adoption of the Enhanced Coordination Procedure for reviewing the Clean Water Act permits for Appalachian mining operations did not violate the statutory authority granted by the Act. The court further found that the Final Guidance regarding more stringent limits to be applied to those permits was not a final agency action subject to review by the court.

Second, in Southern Appalachian Mountain Stewards v. A&G Coal, the Fourth Circuit affirmed the lower court’s ruling and held the Clean Water Act’s “permit shield” did not protect a surface coal mining permittee from citizens’ suit for pollutants discharged from the operation. In reaching this decision the court found that the mining permittee had not complied with the obligation to disclose fully the pollutants discharged from the operation.

We will be analyzing these decisions and will provide expanded discussion here on this site.

Stay tuned.


Business Group Says Climate Change is Risky Business

Posted in Climate Change, Natural Resources, Sustainability, Sustainability Policy

Contingency planning and risk management are important to any business, but have you thought about including climate change among the risks to consider in those plans? A group including business leaders and former government officials released an analysis of the possible impacts that climate change may have on business in the United States, titled Risky Business: The Economic Risks of Climate Change in the United States.

The report does not debate evidence about climate change or question causation. Instead, it takes a risk management approach to evaluate the potential economic impacts of a variety of climatic changes predicted from peer-reviewed studies.

Risky Business identifies three primary areas of risk: (1) losses of coastal property and infrastructure; (2) higher temperatures, especially in the South and Midwest, that reduce productivity, threaten human health, and increase demand for energy; and (3) changes in agricultural production that favor northern areas and reduce yields in the South, lower Great Plains, and the Midwest. The report includes specific discussions on six regions of the continental U.S. and separate discussions of Alaska and Hawaii.

Co-Chairs of the Risky Business Project are Michael Bloomberg, former Mayor of the City of New York; Henry Paulson, former U.S. Secretary of the Treasury; and Tom Steyer, former Senior Managing Member of Farallon Capital Management.  The group’s Risk Committee includes Henry Cisneros, Gregory Page, Robert Rubin, Olympia Snowe, Donna Shalala, George Shultz, and Al Sommer.

The clearly-written discussion is a good place to begin the important dialogue to answer the question “what if?” and to begin to manage the risks presented by the answers to that question.


EPA Cannot Impose Emission Limits Based Only on Greenhouse Gases

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

The U.S. Supreme Court’s decision Monday, June 23, limits EPA’s authority to impose limits on emissions of greenhouse gases (“GHGs”).   Reviewing challenges to EPA’s rule limiting GHGs under the Clean Air Act’s provisions of Prevention of Significant Deterioration (“PSD”) and Title V permitting, the Court held that the Act did not require that EPA impose limits on GHGs in instances where the GHGs were the only pollutants to trigger compliance with PSD and Title V requirements.  The Court also held that EPA’s interpretation of its authority under the Act was not a reasonable interpretation and so the agency’s interpretation was not eligible for deference under the Chevron line of cases.

The decision upheld, however, EPA’s authority to require the use of best available control technology (“BACT”) for GHGs for sources that were already subject to PSD or Title V requirements due to emissions of other, conventional pollutants.



Cooperative Community Efforts for Renewable Energy

Posted in Climate Change, Climate Change and Greenhouse Gases, Energy, Green Building, Solar Energy, Sustainability, Sustainability Policy

An article from the New York Times highlights the innovative approaches that some states and communities are taking to develop solar energy resources.  High cost and lack of space for installation hinder many people who would like to install solar panels to produce electricity.  The article by Diane Cardwell describes how cooperative ventures can help overcome those obstacles.

State action in support of the venutes helps.  Many states discussed in the article (California, Colorado, Massachusetts, and New York) have adopted Renewable Portfolio Standards that require or encourage electric utilities to provide a certain portion of their electricity from renewable sources.  Kentucky, Tennessee, and Georgia are among the states that have not adopted a Renewable Portfolio Standard.  These and other states offer a variety of energy-related incentives, however.

Comment Period Extended on Waters of the United States

Posted in Agency News, EPA, Water

The Environmental Protection Agency and the Corps of Engineers have extended until October 20, 2014, the comment period on the groundbreaking proposed rule to define Waters of the United States.  EPA informed select stakeholders on June 10, but the official notice was published in the Federal Register on June 24, 2014.  For more information, see the EPA “Waters” website at  http://www2.epa.gov/uswaters

Several agencies and stakeholder groups requested additional time to comment on this significant rule (see Bill Penny’s analysis of the rule here).  Agriculture groups made a compelling argument based on the timing of the intial comment period that came at agriculture’s most busy time of the year.  http://www.agrimarketing.com/s/89310

Federal Court Finds Liability for Excess Conductivity

Posted in EPA, Natural Resources, Water

The U.S. District Court for the Southern District of West Virginia, Ohio Valley Envt’l v Elk Run Coal Co  Case No. 12-cv-0785, found liability for discharge to surface waters of ionic pollutants (measured by conductivity) that adversely affect stream macroinvertebrate communities.  The rationale expressed in this decision may have ramifications for the regulated community regarding which types of alleged permit violations may be subject to action by citizens suits and to what extent the courts may act as “super regulators” to impose obligations different from those imposed by the state agencies authorized to oversee the regulated activities.  Although the case orignates in Appalachian coal mining, the court’s evaluation of expert testimony relevant to  general and specific causation of harm, as determined by levels of conductivity and biotic index scores, may affect interpretations of alleged harm caused by pollutants in stormwater and other surface discharges.

Plaintiffs alleged violations of permits issued to the mining company defendants under the Clean Water Act and the Surface Mining Control and Reclamation Act.  The court found that plaintiffs had proved  that defendants had each committed at least one violation of their permits by

discharging . . . high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.”

The court distinguished this case from that of Nat’l Mining Ass’n v. Jackson, 880 F. Supp. 2d 119 (D. D.C. 2012), in which the D.C. District Court invalidated conductivity limits that the US EPA sought to impose by guidance document.  In contrast, the court held in Elk Run Coal that EPA’s findings contained in “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” were scientific findings and, as such, the study was a scientific study within the agency’s area of expertise.

In its detailed, 67-page discussion the court (1) relied on plaintiffs’ expert testimony about the relationship of measures of conductivity and the West Virginia Stream Condition Index (WVSCI) scores; (2) rejected language in a guidance document from the WVDEP that concluded, among other findings, that there was no causative effect between high conductivity and low WVSCI scores; and (3) rejected application of West Virginia legislative actions concerning the relationship between narrative water quality criteria and the makeup of aquatic communities.


Tennessee Innocent Purchaser Defense Requires ASTM E-1527-13: No Choice

Posted in CERCLA, EPA, Tennessee, Waste

EPA has received much criticism for its decision published in its Final Rule, December 30, 2013 (78 Fed. Reg. 79319) to allow both ASTM E-1527-05 and E-1527-13 as meeting the all appropriate inquiries requirements necessary to claim one or more Brownfield Defenses.  These defenses are innocent landowner, bona fide prospective purchaser and contiguous property owner. EPA announced in its Final  Rule that it planned to initiate rulemaking to definitely require version 1527-13 in the near future.  According to some commenters the ’05 version is less onerous, and, therefore, less costly.  Other commenters fear inconsistent treatment of all appropriate inquiries and mass confusion.

Lost in the argument though, is what a state may require of a prospective purchaser to establish the innocent landowner defense.  Most states have remedial action statutes similar to federal law making landowners responsible or liable parties for contaminated property.  The ability to claim the innocent landowner defense could be as much, if not more important at the state level.  In Tennessee, for example, to claim the innocent landowner defense one must use the current version of ASTM E-1527 in effect at the time of acquisition in order to create a presumption of all appropriate inquiry.  Tenn. Code Ann. § 68-212-202(4)(F)(ii).  Version 1527-13 was published by ASTM on November 6, 2013.  Therefore, all acquisitions after that date must comply with the the 2013 version regardless of what the federal rule states.  ASTM E 1527-13 is sold by ASTM and is not made available from state or federal agencies.