Environmental Law Update – Spring 2019

Emerging Contaminants: MassDEP has proposed reportable concentrations and clean-up standards for perfluoroalkyl compounds in the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (MCP).  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall, 2019.

Climate Change: Following up on an April, 2018 policy announcement, the EPA proposes to adopt regulations that would treat carbon dioxide emissions from power plants using managed forest biomass as carbon neutral.  

Renewable Energy: The Massachusetts Department of Energy Resources (DOER) has proposed regulations to revise the Class I and Class II Renewable Energy Portfolio Standard (RPS) regulations, including revisions to the efficiency standard for certain woody biomass to qualify for Class 1 Renewable Energy Certificates (RECs).

Solid Waste:  During 2019, the MassDEP will continue to hold Solid Waste Advisory Committee meetings to arrive at a draft 2020 Solid Waste Master Plan.  Subcommittees that will also be meeting include the source reduction, organics and C&D Subcommittees. In this connection, in February MSW Consultants provided the MassDEP with its final Massachusetts Materials Management Capacity Study which is intended to inform the development of the 2020 Master Plan.

NPDES: In April, the EPA issued an Interpretative Statement on Application of Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants from a Point Source to Groundwater, in which the Agency concludes “that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage. regardless of a hydrologic connection between the groundwater and jurisdictional surface water.” It will remain to be seen whether or not this interpretation will quell the conflict among the federal Circuits over the issue, highlighted last September when the Massachusetts District Court dismissed a citizen’s suit alleging violations of the NPDES program by Casella Waste Systems’ discharge of contamination to the groundwater at the Southbridge landfill in Toxics Action Center, et. al. v. Casella Waste Systems, Inc., et. al.  Hopefully, the United States Supreme Court will answer the question of NPDES jurisdiction when it takes up County of Maui, HI v. Hawaii Wildlife Fund on appeal from a Ninth Circuit decision extending jurisdiction to discharges to groundwater. 

Drought Management Plan

Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe.  Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies.  I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report.  I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.

If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission.  Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches.  There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9).  Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise.  However, large storms do not mean significant groundwater recharge or steady stream flows.  They mostly result in localized flooding and rapid stormwater flows.

Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.”  The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies.  I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.

Great Pond in Jan. 2017. Photo by Ed Baker

The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000.  It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013.  During the 2016-17 drought, the 2013 DMP was used and lessons learned.  EEA and MEMA are responsible for coordinating response efforts and communications with the public.  The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials.  The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.

MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection.  MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA.  Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program.  In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).

The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP.  There is no one-size-fits-all Drought Plan.  Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals.  Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems.  The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.

The DMP is considered to be a living document to be updated and revised based on experiences.  The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.

The Right Whale

The nearly extinct and endangered North Atlantic Right Whale is not holding its collective breath hoping the late Leonard Nimoy (“Spock”) will again time travel to our century to capture and transport two Right Whales (instead of the humpbacks George and Gracie) to the 23rd century to repopulate the species and save the Earth from an alien probe causing destructive climate change on Earth because there are no whale songs.  Star Trek IV:  The Voyage Home (1986).  Absent the Enterprise crew on a desperate mission to save mankind, we are using law and science to stave off extinction of the Right Whale in the 21st century.

The Right Whale can reach 60 feet in length and weigh 100 tons.  There are fewer than 411 individuals, including 100 breeding females, living in the remaining habitat close to the continental shelf on the East Coast.  The waters off Massachusetts are home to this rarest of all large whales.  They were named by whalers who identified them as the “right” whale to kill on a hunt because they are slow, swim close to shore, float to the surface after death, and produce a lot of oil.  Today, the leading causes of death are blunt force from ship strikes during migration through the busiest shipping lanes, entanglement in fishing gear, and bioacoustic impacts to calling and reproductive behaviors.  The species has low annual reproductive rates from deaths, and diminishing food sources due to climate and ocean process changes (in 2017, about 17 females were killed, and in 2018, no new calves were born).  Since the 1980s, females are now raising a baby once per decade. 

Hunting of the Right Whale was banned world-wide in 1937 and has steadily diminished.  Right Whales are listed as “species with extinction … affected by trade” (“CERES”), and as “endangered” by the IURN Red List based on extinction risk.  They are listed as “endangered” under the Endangered Species Act (“ESA”) and as “depleted” under the Marine Mammal Protection Act (“MMPA”).  In 2009, the National Ocean and Aeronautics Administration) “NOAA”) and the National Marine Fisheries Service (“NMFS”) (“NOAA Fisheries”) limited vessel speed to 10 knots in shipping lanes during the annual migration and where Right Whales gather during calving season.  NOAA Fisheries designated critical habitat in 1994 and revised the designation in 2016.  NOAA Fisheries and the Coast Guard have implemented a mandatory vessel reporting system:  When large vessels enter two key habitats, they must report to a shore-based system which advises about locations of recent Right Whale sightings, and precautionary measures to avoid strikes.  NOAA Fisheries has a “500-yard rule” prohibiting approaches of Right Whales by all fishing boats and recreational boaters, kayakers, surfers and paddle boarders.

NOAA Fisheries supports management measures to reduce whale entanglements in fishing gear, which is a primary cause of death, serious injury and reduced fertility.  As they feed, whales get entangled in vertical lines from buoys attached to lobster and crab pots on the ocean bottom, get trapped and drown, or suffer injuries from deep cuts to the body.  New gear has buoy lines that automatically release when pressure is applied by whales.  Ropeless technology with GPS and grappling hook or an inflation buoy is being evaluated and is promoted by Charles “Stormy” Mayo, Director of the Right Whale Ecology Program at the Center for Coastal Studies in Provincetown, who has been a “save the whale” activist since the 1980s.  Since 2014, NOAA Fisheries has banned lobstermen from setting traps in Cape Cod Bay between February 1 and April 30, and closed fishing in the Great South Channel southeast of Chatham between April 1 and June 30. 

Science is keeping track of the whales through ship and plane photography, electronic tags, and a network of 13 detection buoys listening for Right Whales in Massachusetts Bay.  The Center for Coastal Studies conducts early morning aerial surveillance from fall to spring.  The Center reported that about 221 Right Whales, or 54 percent of the population, were spotted in Cape Cod Bay.

Underwater noise interrupts normal behavior and may cause strandings.  Anthropogenic sound from Navy sonar and oil and gas seismic air gun blasts for proposed offshore oil and gas drilling may increase stress and health effects in Right Whales.  In March 2018, the U.S. District Court for the District of Alaska declared illegal President Trump’s order revoking an Obama ban on oil and gas drilling in the Arctic and Atlantic Ocean (Case No. 3-17-CV-00101-SLG).  The ruling tossed out the President’s unlawful order and restores inter alia permanent protections to 31 biologically rich canyons in the Atlantic Ocean which are critical habitat for the Right Whale and other species. 

In February 2018, Conservation Law Foundation and Earthjustice filed a lawsuit against the Secretary of Commerce and the National Marine Fisheries Service seeking declaratory and injunctive relief that the federal agencies failed to prevent jeopardy and unlawful takes of Right Whales from entanglement by the American lobster fishery in violation of the ESA, MMPA and the Administrative Procedure Act.  (Case 1:18-CV-00283; U.S. Dist. Ct. for D.C.).

On January 23, 2019, Vineyard Wind and CLF, the Natural Resources Defense Council, and the National Wildlife Federation entered into an agreement to protect Right Whales during the installation and operation of its proposed 84-turbine project in the lease of 160,000 acres a/k/a OSC-A-501, south of Martha’s Vineyard.  The agreement seeks “to minimize disruption of normal feeding, breeding and migratory behaviors and prevent injury to Right Whales.”  Turbine construction will not occur during the winter and early spring when whales may be in the area.  There will be seasonal restrictions on pile driving.  There will be monitoring to ensure construction does not occur when whales are near the site.  Real-time acoustic monitoring with a range of 10,000 meters will detect Right Whales within the clearance zone and result in construction shutdown.  Geophysical surveys will be seasonally restricted.  Construction noise levels will be reduced and attenuated so as to minimize impacts on the whale’s ability to communicate, locate food and migrate.  There will be a strict vessel speed limit of 10 knots.  The developer will also invest $3 million to develop and use innovative technology and fund scientific research.

In June 2018, Congress introduced legislation to protect the Right Whale.  Senate bill S 3038 and the companion House of Representatives bill H.R. 6060 were purely Democratic initiatives.  The SAVE Right Whales Act of 2018 would require a transition to buoyless fishing gear and provide $5 million per year for ten years for conservation programs aimed at rebuilding a healthy population of Right Whales; specifically, for funding projects to develop, test and use innovative technology to reduce entanglements in fishing gear and vessel collisions.  Given the divisiveness in Congress and penchant for military funding, it may be easier to fund faster than light space research than Right Whale protection!  

Environmental Law Update – Fall 2018

On September 30, the Massachusetts federal District Court dismissed Toxics Action Center, Inc. v. Casella Waste Systems, Inc.,  a citizens suit under the Clean Water Act and RCRA alleging that discharges of leachate from Casella’s Southbridge landfill through groundwater had damaged surface water and contaminated private wells. The Court dismissed the RCRA counts, because additional Court action would be duplicative of  MassDEP’s enforcement actions and, therefore, not “necessary.” The Court acknowledged that “[t]he First Circuit has not addressed whether a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA.”  But the Court sidestepped the groundwater discharge issue as follows: “a landfill is not a point source within the meaning of the CWA, this Court will not reach the issue of whether the CWA extends liability to surface water that is polluted via hydrologically connected groundwater.”

On September 26, the Department of Public Utilities issued an Order providing for utilities to pay direct incentives to owners of new solar generating sources under the Solar Massachusetts Renewable Target (SMART) program.

On September 17, Massachusetts rolled out its first-in-the-nation 2018 State Hazard Mitigation and Climate Adaptation Plan which integrates climate change impacts and adaptation strategies with hazard mitigation planning.  The Plan qualifies the state for Stafford Act funds (per FEMA hazard mitigation grant criteria at 44 CFR § 201.4) and also complies with Executive Order 569.  The state will update the plan every five years, with continuous reviews, updates and revisions via the new Climate Change Clearinghouse.  To date, over 150 communities have performed vulnerability assessments and developed action-oriented resiliency plans under the Commonwealth’s Municipal Vulnerability Preparedness Program (MVP).  Certified MVP communities are eligible for MVP Action grant funding and other opportunities.

On September 4, the Supreme Judicial Court handed down New England Power Generators Association, Inc. v. Department of Environmental Protection rejecting the Power Generator’s challenge to MassDEP regulations requiring decreases in annual GHG emissions under the Global Warming Solutions Act (GWSA). Deferring to MassDEP’s interpretation of the Act, the Court ruled that the Department had the authority to impose annual declining emissions on the electric sector under Section 3 d of the Act, despite the existence of provisions in Section 3 c of the Act, which are specifically applicable to electric generating facilities.

On August 21, Governor Baker signed the $2.4B Environmental Bond Bill including provisions that put into law his 2016 Executive Order 569, establishing an integrated strategy for climate change adaptation discussed above.

On July 12, the EPA and Army Corps issued a Supplemental Notice of Proposed Rulemaking on their proposal to roll back the Obama-Era Waters of the United States (WOTUS) Rule defining the agencies’ Clean Water Act jurisdiction. The comment period ended on August 23, 2018.  Whatever the agencies ultimately decide, ongoing litigation is sure to continue to delay the clarity sought by so many in the regulated community over the breadth of the agencies’ jurisdiction.

In addition to EPA’s April 2018 proposed Strengthening Transparency in Regulatory Science rule, which would limit the scientific studies that the EPA could rely upon in evaluating new regulations, on June 13 the Agency issued an Advanced Notice of Proposed Rulemaking  to change the methodology used to calculate the cost and benefit of new environmental regulations.  Battle lines are being drawn over whether the EPA should continue to count so-called “co-benefits,” which take into account the indirect health benefits in addition to the direct benefits of a proposed new regulation. For example, in the case of the mercury air toxic rule, the EPA included $4-6M of direct health benefits from reduced mercury exposures and $80B in co-benefits attributable to the reduction of other pollutants, primarily particulate matter (PM).

In March, MassDEP promulgated a package of amendments to its air pollution control regulations at 310 CMR 7.00 across a wide array of topics, including a revamp of the rules governing appeals of air plan approvals, which had long been the source of legal uncertainty and litigation.

 

“SUPERFUND IS SEXY AGAIN.”

According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations.  These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations.  So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.

The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants.  They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks.  Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses.   While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.

One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications.  PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used.   In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations.  For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).

Another emerging contaminant is 1,4-dioxane.  1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents.  Because of their widespread consumer use, these compounds are found just about everywhere.  For example, 1,4-dioxane can be found in private septic systems and associated groundwater.  The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.

To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act.  Thus, as far as the federal government is concerned, there is no enforceable standard.  However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure.  For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory.  The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.

The law and regulations governing site assessments and remediation for these contaminants is still “emerging.”  While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard.  In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program.  But this Interim Guidance does not establish clear enforceable standards.  Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant.  Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.

Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site.  According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS.  She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action.  She indicated that there has been some discord between the federal and state governments over this issue.

PFAS can be in solid waste.  The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste.  Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs.  Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility).  This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.

To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air.  A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.

These emerging contaminants present a real challenge on a number of fronts.  Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment.  Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols.  Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.

Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants.  Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.

 

Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment). Read More → “Environmental Law Update – Fall 2017”

POTUS Has Trumped WOTUS Before SCOTUS

In our Spring and Fall 2015 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the “Rule”). The Rule sought to codify the criteria the agencies have applied on a case-by-case basis using the three alternative tests announced by the Supreme Court of the United States (“SCOTUS”) in Rapanos v. United States, 547 U.S. 715 (2006) to define the jurisdictional scope of Waters of the United States (“WOTUS”) under the Clean Water Act. As we predicted, industry groups, 30 states and environmental groups challenged the extension of EPA jurisdiction in federal district and appellate courts.  The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the Rule, and later agreed with the federal government that the Rule was reviewable exclusively in the circuit courts of appeal.  The SCOTUS agreed to resolve the jurisdictional fights over which federal court should hear challenges to the Rule.  Thus, the Sixth Circuit stayed the litigation over the merits of the WOTUS Rule until the SCOTUS decides the narrow jurisdictional question of which courts have jurisdiction to hear substantive challenges to the Rule.  SCOTUS arguments are scheduled for April with an expected June decision.  On April 3, 2017, SCOTUS denied POTUS’ request to stay hearing on the venue for the WOTUS review.

During the campaign, Donald Trump pledged to “eliminate the unconstitutional” Rule and to “direct the Army Corps of Engineers and EPA to no longer use this unlawful rule and related guidance documents in making jurisdictional determinations.”  The SCOTUS grant of review gave the POTUS time to decide how to eliminate the Rule.  On February 28, 2017, the POTUS decried the Rule as a “massive power grab” and signed an Executive Order to direct EPA Administrator Pruitt to begin the legal process to dismantle the Rule and to Attorney General Sessions to ask the court to delay a decision until a new regulation is released.  The process for withdrawing the Rule is lengthy, will require justification, be subject to public comment, and potential challenge in new lawsuits which may end up in the SCOTUS, that will include the POTUS’ newly appointed justice, Neil Gorsuch.  The Republican Congress could also scuttle the Rule legislatively.  (A non-binding resolution was introduced in the House of Representatives that supports the Executive Order.)  Congress could also defund EPA wetlands activities.

The Pruitt EPA will likely be less aggressive in enforcing Clean Water Act violations.  Massachusetts may not be as affected because it has a strong Wetlands Protection Act and many municipalities have Home Rule Wetlands Protection laws.

Until SCOTUS addresses the new Rule years from now, EPA and the Corps presumably will make WOTUS determinations using the Rapanos tests.  A Corps’ Jurisdictional Determination will in turn be subject to judicial review as “final agency action” under the SCOTUS decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc., 101 S. Ct. 1807 (2016).  Lawyers for industry, public interests, conservationists and environmental organizations will be fully employed for the next decade.

The Demise of the Stream Protection Rule

The Republican Congress and the POTUS have stricken the Interior Department’s Stream Protection Rule that protected waterways from coal mining that was eight years in the making.  The rule would have imposed stronger requirements for avoiding coal mining practices that pollute streams and sources of drinking water, for restoring streams, and for reclaiming and replanting mined lands.  Testing and monitoring of streams near coal mines before, during and after mining were required.  On February 2, 2017, Congress employed a little-used tool called the Congressional Review Act to block the rule with a simple majority vote (House 228-194 and Senate 54-45).  On February 16, 2017, the POTUS became the first president in 16 years to sign a regulatory repeal resolution.  The rule would have protected 6,000 miles of streams and 52,000 acres of forest in Appalachia.

Environmental Law Update – Summer 2016

In June, President Obama signed into law a revised version of the Toxic Substances Control Act (TSCA).  Originally passed in 1976, TSCA was designed to have EPA evaluate chemicals to determine if their use required further regulatory control.  As TSCA was implemented it came under considerable criticism because it required the government to have evidence that a chemical posed a risk before it could require testing which could result in greater regulatory control. The new TSCA changes this approach and mandates a review of chemicals in commerce and a requirement that all new chemicals must be assessed against health-based standards – rather than under a cost-benefit standard in the original legislation.  On June 29, 2016, EPA released its First Year Implementation Plan under the revised TSCA.  The aggressive plan includes a timeline for establishing new rules under the legislation including regulations for setting criteria to identify high priority chemicals and an “Inventory Rule”, that would require industry to report the chemicals it manufactured or processed in the previous ten years.  The First Year Implementation Plan also set a schedule for the continuation of on-going projects to identify risks from TCE and chemicals involved in paint removing applications, especially the chemicals methylene chloride (MC) and methylpyrrolidone (NMP).

One of the few times that the Obama administration and Congress were able to find common ground last year resulted in a dramatic increase in fines under federal environmental statutes.  The Bipartisan Budget Act of 2015 included a provision to amend the Federal Civil Penalties Inflation Adjustment Act of 1990 (Sec. 701 of Public Law 114-70).  The amendment included a “catch-up” provision that enabled agencies to adjust their penalties to account for inflation since the date the specific penalty was enacted or previously adjusted.  There was a 150% cap placed on the rate of increase, but many of the penalties under the environmental statutes administered by EPA increased dramatically.  For example, penalties under the Clean Water Act for permit violations under § 1319(d) increased from $25,000 per day of violation to $51,570.  Similarly, administrative penalties under CERCLA increased from $25,000 to $53,907 and from $75,000 to $161,721 respectively.  On July 1, 2016, EPA released the Interim Final Rule that includes the Table that will be incorporated in 40 C.F.R. § 19.4 with a complete rundown of the environmental statutes and fees.  Going forward we will likely see continued increases because the Act implements annual reviews of statutory civil penalties and allows agencies to make annual adjustments without going through the rulemaking protocols of the Administrative Procedures Act.  We will also see settlements demands dramatically increase in NPDES citizen suits under the CWA.

This Spring, Governor Baker announced that he is directing MassDEP to proceed with the steps to have the state administer the National Pollutant Discharge Elimination System (NPDES).  Massachusetts is one of just four remaining states that do not administer the federal NPDES program at the state level.  Taking over the local administration of the NPDES program will be a multi-year process, but MassDEP has started the process.  Hopefully more local control will lead to more responsive interactions between the regulators and the regulated community, as the state and industry work together to implement best stormwater management practices for the benefit of our water resources.

In May, the Supreme Judicial Court reviewed the state’s compliance with the requirements of the Global Warming Solutions Act (GWSA) in Kain v. DEP.  The SJC held that MassDEP failed to implement the GWSA because the agency did not “promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or category of sources, set emissions limits for each year, and set limits that decline on an annual basis.”

In August, MassDEP released proposed draft revisions of the Air Regulations at 310 CMR 7.00.  The topics addressed by these proposed regulations include: (a) establishing thresholds for greenhouse gas emissions that will require a Plan Approval; (b) requiring Plan Approvals for non-major modifications of existing Prevention of Significant Deterioration (PSD) permits; (c) updates to Reasonably Available Control Technology (RACT) requirements for volatile organic compounds; and (d) revised procedures for administrative review of an air permit issued by MassDEP.  The comment period on the proposed regulations closes on Monday, September 26, 2016.

Environmental Law Update – Fall 2015

In our Spring 2015 Environmental Law Update we predicted that there would be judicial and legislative challenges to the EPA and Army Corps’ new Clean Water Rule expanding the scope of jurisdictional waters of the United States.  The Rule seeks to codify existing criteria that EPA and the Corps have been applying on a case-by-case basis using the three alternative tests announced by the U.S. Supreme Court in Rapanos v. United StatesEven before the Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits challenging the regulation.

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Rule nationwide.  The morass of litigation prompted EPA to move to centralize pretrial proceedings in the District of Columbia.  On October 13, 2015, the United States Judicial Panel on Multidistrict Litigation issued an Order denying transfer because the various lawsuits will involve very limited pretrial discovery as the cases will be decided on the administrative record and will turn on questions of law on alleged exceedances of statutory and constitutional authority in promulgating the rule.  The EPA and the Corps have resumed nationwide use of the prior regulations by applying case law, policy and the best science and technical data on a case-by-case basis in determining which waters and wetlands are protected under the Clean Water Act.  On the legislative front, on November 4, 2015, over the threat of a Presidential veto, the U.S. Senate approved a resolution to nullify the Clean Water Rule.  “The more things change, the more they stay the same.”  Stay tuned.