Articles Posted in Environmental

In another recent U.S. Court of Appeals for the Fifth Circuit decision, on October 1, 2018, the Fifth Circuit affirmed, in part, the District Court’s ruling that the general federal statute of limitations, 28 U.S.C. § 2462, required the dismissal of the government’s civil enforcement action in the case of U.S., et al., v. Luminant Generation Co., LLC, et al.

The Fifth Circuit agreed that the statute barred the imposition of any civil fine for the alleged unlawful construction operations regarding the modification of major emitting facilities contrary to Section 7475(a) of the Clean Air Act (CAA). But, the Fifth Circuit remanded the injunctive-relief claims to the District Court for further consideration.

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On September 21, the U.S. Court of Appeals for the Fifth Circuit issued a ruling interpreting potential liability under the Oil Pollution Act (OPA). In U.S. v. Nature’s Way Marine, LLC, the Fifth Circuit affirmed the holding of the District Court that, under OPA, the owner of a tugboat moving oil barges down the Mississippi which later collided with a bridge, spilling seven thousand gallons of oil, was itself an ”operator” subject to liability under the law.

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On September 27, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s ruling that the “Zero Emissions Credit” (ZEC) program of the New York Public Service Commission is not unconstitutional. The case is Coalition for Competitive Electricity, et al. v. Zibelman, Chair of the New York Public Service Commission, et al.

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In early October, the U.S. Court of Appeals for the Third Circuit rules in two Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) cases:

Giovani v. U.S. Department of the Navy

On October 2, the Third Circuit decided the case of Giovanni, et al., v. U.S. Department of the Navy. Affirming the District Court’s ruling in part, the Third Circuit’s view is that:

“[The claim for a health assessment or health effects study is barred, as the District Court said, because it challenges ongoing cleanup efforts. But we will vacate and remand in part because we conclude that the medical monitoring claim is not a challenge under CERCLA and that it is not barred by sovereign immunity.”

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In a Memorandum dated October 19, 2018 and entitled Promoting the Reliable Supply and Delivery of Water in the West, the President has directed the Secretaries of the Interior and Commerce to work together to minimize “unnecessary regulatory burdens and foster more efficient decision-making” so that major federal water projects are constructed and operated in a manner that delivers water and power in an “efficient, cost-effective way.” More specifically, they will take steps to streamline the western water infrastructure regulatory processes and remove unnecessary burdens in accordance with the timetables set forth in the Memorandum.

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The Office of Information and Regulatory Affairs, housed in the Office of Management and Budget, has issued the Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions to be taken over the next several months by federal executive departments and agencies. This report will highlight some of the environmental actions, to be proposed or finalized soon by these agencies. Eventually, the Agenda will be published in the Federal Register.

1.    Environmental Protection Agency (EPA)

EPA, of course, has listed by far the largest number of actions. For instance, EPA’s agenda lists 92 separate actions to be taken under its Clean Air Act (CAA) authority. As an example, EPA reports that it will issue a Notice of Proposed Rulemaking (NPRM) in May 2019 of its proposals to increase consistency and true transparency in considering the cost benefit of its proposed rules, and review the standards of performance for new, modified, and reconstructed sources of greenhouse gas emissions by means of an NPRM to be issued in November 2018.

In other matters:

• A revised definition of “waters of the US” under the Clean Water Act (CWA) will be proposed in October 2018 that would revive the pre-2015 regulatory definition of this term.
• An NPRM will be published in June 2019 to consider changes to EPA’s existing CWA Section 404 permit reviews (of Corps of Engineer permits).
• An Advanced NPRM will be published in December 2018 regarding revised Resource Conservation and Recovery Act (RCRA) standards for the management of liquids in landfills, namely, municipal solid waste landfills.
• In July 2019, EPA will publish an NPRM regarding the need to develop financial responsibility rules under  the Comprehensive Environmental Response, Compensation, and Liability Act, known also as Superfund (CERCLA) Section 108(b) for facilities that are most likely to be involved in CERCLA cleanups, in particular petroleum refineries and coal products producers. The agency has declined to issue such rules for the hard rock mining industry, a decision that is being challenged in the courts.
• In October 2018, EPA will publish an NPRM regarding the revised CERCLA and Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) reporting requirements for air emissions from animal waste, as the Congress has amended the law to permit this to be done.
• In November 2018, EPA will publish an NPRM regarding the RCRA regulation and notification requirements affecting the disposal of coal combustion residue (CCR) wastes that are placed in units closing for cause. This will be followed by the publication of a final rule in June 2019 to modify the CCR Disposal rules promulgated In April 2015.
• In November 2018, EPA will publish an NPRM under RCRA regarding the revision of the existing “flash point method” of determining a hazardous waste characteristic.
• In January 2019, EPA plans to publish a final rule regarding its revisions to the January 2017 CAA Section 112 Risk Management Program rules.
• In September 2019, EPA plans to issue this final rule adding aerosol waste cans to the 40 C.F.R. Part 273 RCRA Universal Waste rules. This action should lessen the regulatory burden placed on retail stores.
• In September 2019, EPA plans to issue a final rule regarding its decision whether to propose additional regulatory requirements relating to the spill prevention and reporting requirements under Section 311 of the CWA. EPA has indicated that it believes that no such action is warranted at this time.

2.    U.S. Army Corps of Engineers (ACOE).

The Corps has significant regulatory and enforcement authority under the CWA. Several actions have been listed by the ACOE including:

•  In June 2019, the Corps will publish an NPRM regarding the ACOE’s administrative appeal procedures. In the wake of the Supreme Court’s ruling in U.S. Army Corps of Engineers v. Hawkes, ACOE wants to amend these rules to require that a party exhaust its administrative appeal remedies before it can appeal a CWA jurisdictional determination to the federal courts.
• In December 2018, the Corps will issue an NPRM by which it intends to update its natural disaster response procedures affecting flood control projects following its experience with several recent hurricanes. The Corps is seeking ways to enhance its flexibility in responding to these emergencies.
• In June 2019, the Corps, in response to Executive Order 13782, will consider proposals to previse and streamline aspects of its CWA nationwide permitting program affecting domestic energy production.

3.    U.S. Coast Guard

• In December 2018, the Coast Guard will publish an NPRM to amend its vessel financial responsibility rules to include tank vessels greater that 100 gross tons. The reporting requirements will be enhanced and will reflect current “best practices”.
• Because of the passage of time, in October 2018, the Coast Guard will issue a Notice of Withdrawal of a 1996 proposed rule that would address tank vessel response plans for hazardous substances.

4.    Department of the Interior

• In September 2019, the Department of the Interior will issue an NPRM to discuss proposals to streamline its NEPA procedures by increasing the number of categorical exclusions and to update the Department’s existing rules.
• The Department’s Bureau of Environmental Management (BOEM), which has significant offshore responsibilities, will issue an NPRM in October 2018 to revise and modify its financial assurance rules for offshore lessees.
• In March 2019, BOEM will issue an NPRM seeking comment on its proposals to deregulate and streamline renewable energy rules that apply offshore, without decreasing environmental safeguards.
• In December, the Department’s Bureau of Safety and Environmental Enforcement (BSSE) office will issue final rules revising its Blowout Preventer and Well Control requirements. These are rules affected by the 2010 Deepwater Horizon oil spill.
• In November 20018, the Fish and Wildlife Service will release an NPRM which will propose to establish regulations defining the scope to the Migratory Bird Treaty Act’s application to the incidental taking of birds protected by the Act resulting from an otherwise lawful activity.

5.    Department of Transportation

• The Department’s Pipeline and Hazardous Material Safety Administration (PHMSA) will issue a final rule in November 2018 that will expand the applicability of comprehensive oil spill response plans requirements to an entire train that is shipping flammable liquid energy products. The agency is interested in developing rules to mitigate the effects of potential train accidents involving the release of these products into the environment.

6.    Council on Environmental Quality (CEQ)

• The CEQ will release an NPRM in February 2019, seeking comments on its proposals to amend its NEPA rules (which apply throughout the federal government) to enhance and modernize the Federal environmental review and authorization process.

Pillsbury attorneys Anthony Cavender and Amy Pierce recently published their Law360 article titled 6th Circ. Creates Deep Divide Over Reach Of CWA. Their article discusses recent decisions from the federal appellate courts that have raised new questions about the scope of Clean Water Act-related (CWA) issues that once seemed settled. These issues include, for example

• Whether discharges into groundwater that reach navigable waters are subject to the jurisdiction of the Environmental Protection Agency or the U.S. Army Corps of Engineers and, therefore,  require the issuance of a National Pollution Discharge Elimination System permit.
• Whether a regulated “point source” can also include landfills and other waste disposal and storage areas used for handling coal ash waste.
• Whether there are temporal limitations to the invocation of “ongoing violations” of the CWA when the initial violations were corrected years ago.

These decisions have created uncertainty within the regulated community affecting many industries and commercial activities. For that reason, and the fact that petitions for certiorari are piling up at the U.S. Supreme Court, the Court is expected to decide to review these cases and resolve this stark conflict between the circuits.

On September 21, 2018, the U.S. Court of Appeals for the Ninth Circuit decided the case of Tin Cup, LLC v. U.S. Army Corps of Engineers. A divided panel of the Court of Appeals (although all members concurred in the result) held that legislative language in a 1993 appropriations act does not require the U.S. Army Corps of Engineers (Corps) to continue to use its 1987 Clean Water Act (CWA) wetlands guidance beyond 1993. The Ninth Circuit noted that it approaches the interpretation of budget bills somewhat differently.

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The Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established.

Unless this decision is reversed by an en banc Fourth Circuit ruling or the Supreme Court, VEPCO will avoid millions of dollars in cleanup costs, and this is also a restatement of the limiting conditions placed on CWA citizen suits.

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