Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

Obtaining information can be costly.  In the area of stormwater regulation, it is an expense that EPA wants to pass on to a chosen few.

As previously reported, EPA held six "listening sessions" in early 2010 to consider:

• Expanding the area subject to federal stormwater regulations;

• Establishing specific requirements to control stormwater discharges from new development and redevelopment;

• Developing a single set of consistent stormwater requirements for all MS4s;

• Requiring MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and

• Exploring specific stormwater provisions to protect sensitive areas.

EPA has decided to go forward and is proposing to survey owners and developers of newly developed sites, NPDES permitting authorities, owners and operators of MS4s and transportation-related MS4 entities.  These are revised questionnaires from those originally proposed in October of 2009.  EPA intends to propose a rule to control stormwater from, at a minimum, newly developed and redeveloped sites and to take final action no later than November 2012. 

Turning to the burdens associated with obtaining the requested information, EPA says:

• The number of potential respondents is 5,516;
•  It will take an average of 30 hours to complete;
•  The total cost of compliance will be $7,000,000;
•  There will be 167,669 hours expended; and
•  The long questionnaire for owners will take 73 hours at a cost of $3,435.

EPA contends that it has the authority to compel responses under sections 304(i), 308 and 402(c) of the Clean Water Act.  Even if EPA has the authority to take this information without compensating the parties for the time and money they will expend to comply (under threat of criminal prosecution if they don't respond), should it?  Maybe it would be wise to expend some resources on determining whether other non-point sources (which account for more than 70% of water pollution) should receive scrutiny before adding yet more regulation to relatively small contributors. 

In any event, you have until June 9, 2010  to comment on EPA's need for the information, the accuracy of the burden estimates and suggestions on how to reduce the burden (presumably such suggestions should be constructive and physically possible).

RELATED POST: The Train's A-Comin': More Stormwater Rule Changes

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It appears that the Obama EPA believes that it's pretty hard to measure something if you don't put a number on it.  We're seeing this philosophy play out in the area of imposing discharge limits, where it has become clear that EPA prefers numeric standards over narrative or descriptive standards.

For example, for more than fifteen years, stormwater discharge permitting from construction sites has relied on the use of “best management practices” or the installation of barriers to slow down runoff (such as silt fences or detention basins). When this was properly done, the stormwater regulations were routinely viewed as being satisfied. That has now changed. EPA, for the first time, has imposed a discharge standard of 280 NTUs on stormwater leaving the construction site. The proposed numeric standard was going to be 13 NTUs, but, after participants at public hearings pointed out that this was virtually impossible to meet, EPA switched to 280 NTUs.

Similarly, EPA has, for the first time, implemented a numeric standard for suspended solids that may enter streams from mountaintop mining sites. The solids will be measured through stream conductivity, with a cap of 500 uS/cm. According to EPA Administrator Lisa Jackson, there are “no or very few valley fields that are going to meet this standard.” EPA is taking public comment on this proposed standard until December 1, 2010 but has made it effective immediately.

Moving to air regulation, EPA has finalized a greenhouse gas emission limit from cars and light trucks at an average of 250 grams per mile of carbon dioxide in 2016. This would be the first nation-wide greenhouse gas emission limit to be adopted by the United States.

For anyone who thinks that this trend is going unnoticed by those who watch this sort of thing, I would point out that Sierra Club has renewed its request to EPA to set, for the first time, numeric water quality standards for nitrogen and phosphorus. Nitrogen and phosphorus are the primary pollutants in the dead zone found in the Gulf of Mexico.  Should EPA be inclined to impose such a numeric standard, and if recent attempts to regulate non-point sources are successful, the change could have an immediate impact on farming, which, while being the primary source of income in many states, is also the primary source of nitrogen and phosphorus contamination in lakes, streams and rivers.

Businesses should take note of this direction. Numeric standards can be very difficult on regulated entities. These standards are much easier to enforce than descriptive or narrative standards and they eliminate all discussions of what is fair or reasonable or necessary based on differences in circumstances or locales. Except in the actual creation of the standard, there is no cost/benefit analysis employed. The only question is whether the discharge of the regulated substance is above or below the regulated level, and where that number is put can determine whether you are in, or out of, business.

RELATED POSTS: New Stormwater Regulatuions Rain Down on Developers 

                             Stormwater Regulation of Developed Sites Coming?

                             Agricultural Runoff Comes Under Scrutiny

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Storm water runoff from agricultural property has long been a problem for water quality, primarily because there is virtually no regulation of that runoff. That might be changing.

In a new report issued by the Environmental Law and Policy Center and the Mississippi River Collaborative, there is a discussion of agricultural runoff and a review of the regulatory programs in California, Delaware, Iowa, Kentucky, Maryland, Oregon and Wisconsin. Among other things, the report emphasizes something that is frequently espoused by clean water advocates. That is:

Nonpoint source pollution is the greatest threat to water quality in the United States, yet neither states nor the federal government has taken adequate steps to diffuse that threat. Nonpoint source pollution is one of the most pervasive forms of water pollution and is not directly regulated the Clean Water Act. (Page 3).

According to the Report, since agricultural runoff is a large contributor to water pollution,

Current approaches to protect water quality will not succeed in controlling nitrogen and phosphorus pollution. The Clean Water Act explicitly exempts agricultural storm water runoff and irrigation return flows from regulatory requirements under the Act and its National Pollution Discharge Elimination System (NPDES) program. Discharges from Concentrated Animal Feeding Operations (CAFOs) are covered by the NPDES permit program, but under U.S. EPA CAFO rules, many CAFOs may not seek NPDES coverage because they do not “propose to discharge.” In practice, this means that manure from these facilities is supplied to land, where storm water runoff is exempt from regulation. Consequently, the largest contributors of nitrogen and phosphorus are scarcely regulated at the federal level and pollution problems continue to worsen. (Page 2).

The Report goes on to examine the limited regulation found in the seven reviewed states and then analyzes the various practices that could be used by the states to control nonpoint pollution. Those five practices are:

• Vegetative buffer requirements
• Land application setbacks
• Winter manure application prohibitions
• Livestock exclusion requirements
• Fall fertilizer restrictions

According to the Report, these are “basic, common-sense practices that should be followed by all agricultural operations.” So why aren’t they?

There are any number of possibilities, but the most obvious is that states that rely heavily on agriculture for their economies are not going to impose expensive restrictions on farming practices. This is certainly a valid consideration and, historically, there have been enough of those states to prevent a change on the federal level and with regard to the individual states, there are enough state legislators that are concerned about rural economies that it is difficult to make radical changes on the state level.  There are some indications that the sacredness of these cows may be changing.

The ELPC Report appears to be making a big splash and it comes at a fortuitous time -- the interest in the environment seems to be increasing and will likely continue for at least the next three years.

Also, in the Iowa Environmental Protection Commission’s Annual Report and Recommendations, issued on January 19, 2010, the EPC issued its recommendations for future legislative action saying:

New legislation to address non-point source pollution from agriculture and urban runoff is needed. Non-point sources of pollution are the major contributor to nutrient and bacterial impairment of Iowa’s water and these sources must be controlled to achieve Iowa’s clean water goals.

(It should be noted that the EPC’s admonition was ignored in that the Iowa legislature ended its 2010 session yesterday without passing any new environmental laws).

Finally, the Des Moines Register immediately reported on the ELPC Report and noted that Wayne Gieselman, Iowa Department of Natural Resource’s Administrator of Environmental Services, said that the requirement of no-crop zones along streams together with voluntary buffer-stripped programs, “could gain traction in Iowa if the federal government put up enough cash for rental payments to farmers.”

This is all to say that it may be that there is a new found willingness to consider what used to be off limits. But as with everything political, it will take time -- and, undoubtedly, money. 
 

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In an earlier post, I noted that EPA was in the process of setting its enforcement priorities for the years 2011 through 2013. At the time, the Agency had fifteen areas of possible consideration. EPA has finalized its list and out of the fifteen areas under consideration, they chose five and added a sixth area not previously considered.

The areas that have been chosen for the final cut are:

• Keeping Raw Sewage and Contaminated Storm Water Out of our Nations’ Water – This enforcement initiative will focus on reducing discharges from combined sewer overflows, sanitary overflows and municipal separate storm sewer system. EPA will be requiring various commitments from cities to implement solutions to the problems caused by aging urban infrastructure. For many municipalities, this means huge and expensive construction projects will need to be undertaken in the very near future;
• Preventing Animal Waste from Contaminating Service and Ground Waters – Concentrated animal feeding operations generate a large amount of manure which can end up being discharged into surface waters or seep into ground water. EPA intends to strengthen its enforcement focus on existing large and medium sized facilities that are not in compliance with permitting regulations;
• Cutting Toxic Air Pollution that Affects Communities’ Health – Hazardous air pollutants have been determined to present significant threats to human health. This enforcement initiative will focus on industrial and commercial facilities that are allowing excess emissions;
• Reducing Widespread Air Pollution from the Largest Sources, Especially the Coal-Fired Utility, Cement, Glass and Acid Sectors –Many industries have ignored the New Source Review and Prevention of Significant Deterioration requirements when building new facilities or making significant modifications to existing facilities. This national enforcement initiative will target these emissions, particularly at coal-fired utility, cement, glass and acid plants;
• Reducing Pollution from Mineral Processing Operations – Mountaintop mining has not gone unnoticed by EPA. Mining and mineral processing facilities pose high risk to human health and the environment with many of the sites already being on the Super Fund National Priorities List. This initiative will seek to bring these facilities into compliance;
• Assuring Energy at Extraction Sector Compliance with Environmental Laws – This is a new topic for EPA. The initiative indicates that EPA understands that a push for “clean energy” sources can result in a dirty environment. A particular area of scrutiny will be oil and gas extraction as well as coal mining.

Those that got knocked off of the list include environmental justice, Indian country drinking water, marine debris, RCRA enforcement, RCRA financial assurance, pesticides at day care facilities, industrial surface impoundments, wetlands and worker safety for agricultural pesticides.

Businesses should be aware of the final priority list because EPA has, in the past, followed it when deciding where to place its emphasis (and enforcement funds).  While I doubt that the mining, oil, gas, coal-fired utilities, CAFOs or industries producing hazardous air pollutants are going to be particularly shocked by the initiatives targeting them, some municipalities may be very unpleasantly surprised by their next visit from EPA.

RELATED POST:  EPA Has Its Priorities

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The Clean Water Act is complex and rule intensive.  As such, it is easy to forget the purpose of the Act -- clean water.   The Eighth Circuit recently had an opportunity to remind us of that purpose in the case of Service Oil, Inc. v. U.S. EPA.

For those who practice in the area of property development and storm water regulation, the facts were not surprising.  Service Oil began construction of a Stamart Travel Plaza on more than five acres of land in Fargo, North Dakota. As soon as earth was turned, the site became a potential “point source” under federal law. The storm water discharges from the site were deposited into Fargo’s storm sewer system which then went into the Red River of the North. As a result of this discharge, the site was required to obtain an NPDES permit. The North Dakota Department of Health was authorized to issue the NPDES permits and required that a Notice of Intent to obtain such a permit had to be submitted at least 30 days prior to the start of construction.

In October of 2002, EPA and the North Dakota Department of Health officials inspected the Stamart site and found that no Notice of Intent had been filed, which was quickly corrected by Stamart.  As luck would have it, there was apparently no rain fall that occurred at the site between the time that development commenced and the time Stamart was able to get its Notice of Intent on file. Though the state officials were satisfied, EPA continued its review and determined that Stamart had also failed to conduct site inspections as required by state law.

In bringing its action against Stamart, EPA sought an $80,000 administrative penalty based on two acts: (1) Stamart’s failure to file its Notice of Intent in a timely manner and 2) Stamart’s failure to conduct timely inspections. The majority of the penalty ultimately assessed by the Administrative Law Judge was for the failure to properly file the Notice of Intent. The ALJ found that Section 1318 of the Clean Water Act had record-keeping requirements supported by regulations that required the preconstruction submission of a completed permit application.

On appeal, the Court agreed that the Clean Water Act prohibits discharges without a permit.  It also agreed that it is logical that the regulations provide for permit applications to be submitted prior to any initial discharge. The Court focused on the fact that the regulations required that a person who proposes a new discharge must submit its application before the date on which the discharge is to commence. However, the statute’s requirements, by its terms, applies to a point source. In the words of the Court:

Failure to comply with [the requirement of submitting an application before discharge] cannot be a violation of section 1318(a) because that statute’s record-keeping requirements are expressly limited to “the owner or operator of any point source.” Before any discharge, there is no point source. (Emphasis added).

The Eighth Circuit was simply emphasizing that EPA does not regulate “point sources.” Rather, a point source is just a defined term which determines whether the regulatory scheme might apply to that source. If the source is not deemed to be a point source (such as agricultural runoff), then the regulatory scheme does not apply to it. If it is defined to be a point source (such as a construction site), then the regulations do apply, but only after there has been a discharge.  Since the statute gives jurisdiction only over actual water discharges, a developer cannot be penalized for failing to take out a permit, at least not until a discharge event, such as storm water runoff, has actually occurred.

To emphasis this point, the Court quoted an earlier Second Circuit case:
 

The Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves. (Emphasis in original).

So does this mean the developer can avoid filing a Notice of Intent or obtaining a permit?  The Court, recognizing that EPA might be concerned that it lacks regulatory authority to assess administrative penalties for failing to submit a timely permit application, offered these words of consolation:

Prudent builders know that permits do not issue over night and that storm water discharges can happen any time after the start of construction makes the site a point source. They will apply and obtain permits before starting construction to avoid penalties for unlawful discharges that may prove to be severe. That is the regulatory regime Congress crafted.

In other words, developers take note -- counting on the Farmer's Almanac is probably not a sound business plan. 

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A key aspect of being effective is figuring out what needs your attention right now and what can wait until later. EPA seems to understand this.  Every three years, EPA creates a set of national enforcement priorities setting out the areas in which it will focus its inspections, compliance assistance and enforcement actions over the course of those three years. It provides for interesting reading.

For example, the priorities for the years 2008, 2009 and 2010 were:

• Air toxics

• New source review/prevention of significant deterioration

• Concentrated animal feeding operations

• Municipal combined sewer and sanitary sewer overflows

• Storm water
• 
Mineral processing
• 
Financial responsibility
• 
Indian country

The Agency is in the process of setting its priorities for 2011, 2012 and 2013. To identify the possible areas of consideration, EPA collected information from the various regions, states, tribes, associations and the public. Based on the information it received, EPA created the following list of candidates for the upcoming enforcement priorities:

• Air Toxics – EPA is proposing to continue to focus on leak detection and repair and the presence of hazardous air pollutants near schools;
• Concentrated Animal Feeding Operations (CAFOs) – this initiative would focus on the regulation of surface water runoff carrying animal waste into waterways. There is no discussion of air or odor issues;
• Environmental Justice – a review of burdens that pollution has disproportionately placed on vulnerable populations including children, communities of color, Native Americans and the poor;
• Indian Country Drinking Water – it has been determined that the level of noncompliance of public water systems in Indian country is significantly hirer than at comparable public water systems outside of Indian country. This initiative would attempt to identify the reasons why and find a method of correcting those deficiencies;
• Marine Debris – this would focus on debris that is improperly discharged into a water way. Enforcement of current regulations and cleanup activities would be key components of the initiative. It is viewed as a good fit to address along with municipal runoff issues;
• Mineral Processing – mineral processing and mining use strong chemicals and generate large volumes of waste for disposal. Over the past decade, significant damage has been done to the environment from these operations. This initiative would focus on inspections and sampling by EPA;
• Municipal Infrastructure – the storm water and sanitary sewer piping for many cities is outdated and frequently causes discharge events. This initiative would require significant modifications and repairs to many of the city systems;
• New Source Review/Prevention of Significant Deterioration – EPA has determined that many air pollutant sources have made operational changes that have resulted in increased air emissions, but failed to obtain proper permitting. The industrial sectors which will be reviewed are coal-fired electric utilities, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities, glass manufacturing facilities and lime manufacturing sites;
• RCRA Enforcement – increased emphasis on cleanups of contaminated facilities and creation of a nationally consistent approach to enforcement at all RCRA facilities;
• RCRA Financial Assurance – increased enforcement of determining that sufficient funds are set aside for response and closure of RCRA facilities;
• Resource Extraction – various forms of resource extraction, such as mountaintop mining and oil and gas development, have caused increased concerns about a rise in levels of air pollution and water quality degradation. This initiative would increase the focus on the regulation of these resource extraction activities under CAA, CWA and SDWA, with emphasis on federal lands and Indian Country;
• Pesticides at Day Care Facilities – a study done in 2001 of wipe samples from indoor services at day care centers identified at least one pesticide in every day care center studied. Some centers had up to ten different kinds of pesticides in use. This initiative would investigate the use and effect of pesticides at day care centers;
• Surface Impoundments – many industrial facilities use surface impoundments to treat or store non-hazardous liquid and solid waste which can contaminate surface water, groundwater and air. Additionally, hazardous waste storage in such impoundments without a RCRA permit is a violation of law. EPA estimates there are 18,000 surface impoundments operating and that inspection and oversight is a worthwhile initiative;
• Wetlands – recent studies show a pattern of wetland loss under the Clean Water Act which justifies an enforcement initiative;
• Worker Protection Standards for Agricultural Pesticides – studies show that farm worker families have a higher level of pesticide exposure than non-farm worker families. In light of the number of farm workers and pesticide applicators, an initiative of inspections for both product and use compliance is necessary.

Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, spoke at the National Environmental Justice Advisory Council on January 29, 2010. At that time, Ms. Giles indicated that the fifteen new enforcement areas for consideration were likely too many and that, when finally published, there will likely be fewer than nine initiatives for the 2011 through 2013 period. She also indicated that air toxics emissions, large animal feeding operations and new source review violations will likely make the cut for the national enforcement priorities.

It is important for businesses and legal practitioners to carefully note the final list of initiatives. At least over the past three years, a great deal of the EPA’s enforcement activities have been conducted on the topics that they identified as initiatives and there is every reason to believe that this will continue in the future. To be forewarned . . . .

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A recent guest editorial in the Des Moines Register makes an interesting observation about water quality in agricultural states -- it stinks.

The authors state that Iowa has a double standard concerning sewage. That is, there are significant and costly regulations for point sources, such as municipal and industrial wastewater treatment facilities that discharge into rivers and streams, but virtually no regulation of non-point discharges, like the transporting and spreading of manure on farmland that then washes off into the waterways. According to the authors:

If state officials hope to stop the degradation of Iowa’s waters, it does not make sense to ignore the agricultural component, which accounts for at least 90 percent of our water pollution.

To be sure, it’s hard to argue against cleaner water. But is it fair to impose a new regulatory and financial burden on cities and urban industries, while continuing to allow industrial agriculture to spread untreated sewage into the land?

The authors conclude that the agricultural, non-point sources should be held to the same standard as point sources and suggest that agricultural discharges should be required to pass through a wastewater treatment facility, though the article fails to mention the staggering cost of that proposal.

It’s certainly an interesting point, and it is not unique to Iowa or the United States. The Clean Water Act has always given a free ride to non-point pollution sources. Though it may make no scientific sense to say that a 40-acre field that has agricultural runoff is somehow different from a 40-acre field that is being prepared for a subdivision, that has been the regulatory scheme for decades. And it has been true despite the fact that, as pointed out by the authors, the vast majority of water contamination can be attributed to non-point sources.

In the past, even the mention of imposing such costs on agriculture, a significant employer in many state economies, was political suicide -- and maybe it will continue to be. But as EPA and state environmental agencies begin to force more and more costly regulation on point sources (for example, storm water runoff from construction sites), those same sources are going to start pressing the question of why non-point sources, which are significantly larger polluters, are virtually exempt from expensive regulation. It may be that it’s going to become harder and harder to keep this cow sacred. At a minimum, it’s going to make for an interesting debate. 
 

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Let there be no question: EPA is very serious about adding significantly to the requirements imposed on developers, cities, homeowners and businesses relating to stormwater discharges from development and redevelopment sites.  Either that, or someone in the stormwater section forgot to take a break for the holidays.

EPA has decided that it will hold five "listening sessions" designed to elicit input as to whether it should "strengthen stormwater regulations and to establish a comprehensive program to reduce stormwater from new development and redevelopment."  Bear in mind that this is in addition to the proposal to send a 61-page questionnaires to 1000 developers seeking financial and project information. 

The press release for the listening sessions provided the following description:

EPA seeks input on the following preliminary regulatory considerations: expand the area subject to federal stormwater regulations; establish specific requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all municipal separate storm sewer systems; require those sewer systems to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.

The sessions will be held:

·         January 19, 2010, 10 a.m. to 3 p.m. at EPA Region 5 Office, 77 W. Jackson Blvd., Chicago

·         January 20, 2010, 10 a.m. to 3 p.m. at EPA Region 9 Office, 75 Hawthorne Street, San Francisco, Calif.

·         January 25, 2010, 10 a.m. to 3 p.m. at EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colo.

·         January 26, 2010, 10 a.m. to 3 p.m. at EPA Region 6 Office, 1445 Ross Avenue, Suite 1200 Dallas, Texas

·         January 28, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel Rios Building, 1200 Pennsylvania Ave. NW, Washington, D.C.

The public can register by going to the Web site below.

EPA will accept written comments on the preliminary rulemaking considerations until February 26, 2010.

More information on listening sessions, the potential rule and instructions for submitting written comments: http://www.epa.gov/npdes/stormwater/rulemaking

Those who will be affected need to take this initiative very seriously.  According to the FederalRegister, EPA is relying heavily on a report of the National Resource Council entitled "Urban Stormwater Management in the United States."  This document is a light read of 529 pages and it advocates a fundamentally new system of stormwater regulation which would impose additional costs and substantially greater regulatory oversight, particularly for cities.  The new system discussed by NRC would apply not only to "building on previously undeveloped sites, but also to redeveloping and retrofitting existing development" (page 406).  Rather than apply to individual sites, the new permitting system would be "watershed based" (pages 346, 387 and 419).  That is, the entire watershed, wherever it is located, would be the permitted area, requiring heavy involvement by cities.  According to the report:

At the heart of the proposal for a new system of regulating discharges to the nation's waters is issuing permits to groups of municipalities in a watershed operating as co-permittees under a lead permittee.  Furthermore, the proposal envisions these municipal permittees assuming responsibility for and implementing the permits for all public and private dischargers in their jurisdiction. (Page 411).

This is your chance.  Written comments can be made or, if you're near one of the five cities, you can go and be heard (so long as you sign up by January 15th and you limit your comments to three minutes).  Speak now or forever hold your stormwater.

Related Posts: Stormwater Regulation of Developed Sites Coming?

                       New Stormwater Regulations Rain Down on Developers

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Recently, EPA promulgated new regulations for stormwater discharges from construction sites which, for the first time, will place a numeric limit of 280 NTU on discharges from those sites during construction. The regulations have drawn criticism but, since they will be phased in over four years, it is unlikely that any change will be made in the near future. Apparently not satisfied with addressing the runoff from construction sites, EPA has indicated that it will consider limitations for runoff which occurs at construction sites after completion of the development (otherwise known as post-construction runoff discharge). That is, EPA is considering requiring significant limits and the maintenance of controls on stormwater coming off of newly developed and redeveloped sites which will be regulated forever, not just during the period of construction.

To have a sound basis for these limits, EPA needs to collect information. It is proposing to do this by distributing a questionnaire to about 1000 developers. EPA plans to mail the 61-page questionnaire around April 2010 for response within 60 days. A response will be mandatory and failure to respond could result in civil or criminal enforcement.

The questionnaire is designed to collect financial, environmental and technical data about projects covering the period of 2005 to 2009. Some of the information to be collected includes:

1. The company’s balance sheet and income statements for 2005-2009;

2. For 10 completed projects, the Notice Of Intent permit number, number of acres, start and end dates of the projects, types of soils and capital costs for each project;

3. Land acquisition, development, financing and sales costs for each project.

A signed certification stating that the responder is aware that there are “significant penalties for submitting false information, including the possibility of fines and imprisonment” is found at the end of the form. EPA’s own estimate is that the information collection will cost just over $4,000,000 and will take the typical company 53 hours to complete the questionnaire.

I understand that EPA has broad power to obtain information.  Usually that power is used when a company is suspected of wrongdoing, but that isn’t what is happening here. EPA is trying to do a study to see if the required placement and maintenance of controls for stormwater being discharged from a development . . . forever . . . can be justified. You’ll need to determine for yourself whether the data being collected will aid in making that determination.

In any event, if you want to be heard on whether this is a good way for EPA to determine whether if, and to what degree, stormwater runoff controls and limits should be imposed after a project is completed, now is your chance. You have until December 29, 2009, to give EPA your 2¢ worth.  It may be the best 2¢ you ever spent.

Related Post: New Stormwater Regulations Rain Down on Developers

                     The Train's A-Comin': More Stormwater Rule Changes

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Stormwater runoff from construction sites has been an area of environmental regulation that received only passing attention until sometime around 2004.  In that year, EPA inspected a large retail facility, found multiple violations and imposed heavy fines.  Since then, EPA has expended significant resources to ensure compliance with the regulations. 

In 2008, EPA determined  that the existing regulations were insufficient and proposed additional  regulations.  The proposed rules were put out for public comment and on November 23, 2009,  EPA handed down new, technology-based guidelines. For developers and home builders, it wasn’t good news. The new regulations, found at 40 C.F.R. Part 450, impose two new requirements:

1.    Construction site owners and operators that disturb one or more acres must use best management practices to ensure that soil disturbing during construction activities will not pollute nearby waters;

2.    Construction sites that disturb 20 acres or more at one time (later being reduced to 10 acres) must monitor discharges from the site and prevent discharges that exceed 280 nephelometric turbidity units (NTUs) from leaving the site.

The second requirement sets out, for the first time, a numeric standard on discharge from construction sites. EPA’s original proposal was to have a numeric limit of 13 NTUs, which is a very clean discharge. During the comment period, EPA was informed that a limit of 13 NTUs would increase the cost of construction by $15,000 to $45,000 per acre. The final standard of 280 NTUs, while more lenient, will add some significant costs to new construction.

A few items of note about the 280 NTU limit:

1.   If the rainfall is in excess of the 2-year, 24-hour storm event, then the limit does not apply.  In effect, such a large rainfall is treated as a bypass event;

2.    If less than 20 acres (or, later, 10 acres) is disturbed at one time, then the limit does not apply.  As soon as a developer goes over 20 acres of open area, the limit kicks in until there is a drop below 20 acres, in which case the limit no longer applies;

3.    In counting the 20 (or 10) acres, the develop must count all of the acres within the same common plan of development or sale even if the open acres are not contiguous;

4.    The developer can test the effluent multiple times over the course of the day, but the average of those test results must be less than 280 NTUs to avoid a violation;

5.   The BMP requirement applies at all times and is not tied to the 280 NTU limit.

Because the new requirements are a significant departure from the existing regulations, they will be phased in:

1.    Construction sites that disturb 20 acres or more at one time will need to monitor beginning 18 months after the effective date of the rule;
 

2.    Construction sites that disturb 10 acres or more at one time will need to monitor beginning four years after the effective date of the rule.

For states that have not been delegated NPDES authority and that use the federal storm water construction permits (Idaho, Massachusetts, New Hampshire, New Mexico and the District of Columbia), this means that the monitoring will begin August 1, 2011, and February 1, 2014. States that have been granted authority and periodically receive approval for the program will have a delay of the effective date. In the past, EPA has allowed the states to phase in new rules in accordance with their permit renewal dates. For example, Iowa’s storm water construction permit will be renewed on or about October 1, 2012. Therefore, Iowa’s compliance dates for the new requirements could be April 1, 2014, and October 1, 2016. We’ll have to wait to see if this interpretation is allowed for these new rules.

The changes imposed by the new rule couldn’t have come at a worse time, but, to some extent, EPA had no choice. The rule changes were in response to a court order that compelled EPA to makes changes by December 1, 2009. The question that remains is whether the new rules are sensible. That question is for another post.

RELATED POSTS: Stormwater Regulation of Developed Sites Coming?

                             The Train's A-Comin': More Stormwater Rule Changes  

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Many thanks to Michael Foti at Attorney.org for including this blog in the list of "Top Environmental and Land Use Law Blogs."  The primary focus of Attorney.org is to raise awareness and take stands on pressing issues in an effort to fight for change.  They have decided to focus some of their resources on the environment and land use and have spent what appears to be a considerable amount of time researching the available law blogs. 

If you like to see good writing on very current environmental issues, take a look at the list that Attorney.org has put together.  The posts by those authors will make you laugh and make you cry.  But most of all, they'll make you think.  And in this environmental age, there's a lot of thinking--and acting--that needs to be done.

I'm proud to be included in the list and I would encourage you to look at all of the others found there. They deserve your attention and support.

RELATED POST: Best Environmental Law Blogs

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On October 16, 2009, EPA drew a line in the sand regarding mountaintop mining. With regard to the Spruce No. 1 Service Mine Permit located in Logan County, West Virginia, EPA informed Arch Coal, Inc. that it was beginning the process that could result in the rescission of its Clean Water Act permit.  Although the mine had a validly-issued permit from the Corps of Engineers, EPA believes that it has broad authority to veto the Corps' issued permit if it finds that serious water quality damage may occur and that there are methods to avoid such damage.   In the words of William Early, the acting regional administrator for EPA in Region III:

We recognize the issued permit contains several provisions that may be intended to address water quality and mitigation based upon information and data available at the time [of the issuance of the Clean Water Act Section 404 permit]. However, in light of new data and information since permit issuance, EPA remains concerned with much of the analysis set forth in your letter, particularly as it relates to the potential for adverse water quality impacts, further avoidance and minimization measures, the potential for accumulative impacts, and identification and enforceability of success criteria for mitigation.

Mr. Early’s concern, as stated in the letter, is that the operation of the mine “may result in unacceptable adverse impacts to fish and wildlife resources.” He noted that the project allows for the construction of six valley fills for placement of excess spoil material generated through the surface coal mining activities and that there were only minimally acceptable methods to minimize impacts to aquatic resources. In EPA’s view, “there is the potential for [the mine’s] associated discharges to cause further stream degradation.” Early also noted that the existing permit fails to contain adequate measures to mitigate environmental damage and does not set out what procedure would be appropriate if water-quality impacts would happen to occur.

The action of EPA is notable in several respects:

• It is the first time that EPA has threatened to rescind a permit for a project that had been previously authorized.
• Since 1989, only one other project has received a Section 404(c) veto from EPA.
• Prior to 1989, a total of eleven projects have received a veto, none of which involved mining.

Additionally, it is interesting to note that EPA's review is purportedly based on "new data and information since permit issuance,"  a process that took almost ten years.  Some might wonder wherther it is new evidence or a new administration that is driving the review and, if it is the latter, what impact will it have on business to know that the fundamental rules of the game (such as revoking already issued permits) can be changed every four or eight years? 

Though environmentalists may look on the EPA action as an indicator that the EPA under Obama is going to be much more aggressive against mountaintop mining, perhaps this is not really the best test case for that proposition. This site was, after all, one of the very few sites that even the Bush-era EPA was reluctant to give a glowing review. In June of 2006, during the comment period for the permit for the Spruce Mine, the site received a ranking of “EC-2,” which equates to “Environmental Concerns and Insufficient Information.”  Further, in its statement, EPA "emphasizes that the Spruce No. 1 represents an unusual set of circumstances we do not expect to be repeated again."

While it is a significant first step, what action is taken by this EPA for the remaining seventy-eight mountaintop mining permits will be much more telling.

RELATED POST:  Switchback Regulation and Mountaintop Mining: The Wrong Path?
 

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Traveling up a mountain is never an easy proposition -- thin air, cold temperatures and those dizzying roads that whipsaw back and forth for miles.  While I recognize the need for switchback roads to convey the traffic, I have trouble using them as a model for environmental regulation, but it seems that that is where we are today; that is, changing environmental policy 180 degrees with each change of administration.  A case in point is Coeur Alaska, Inc. v. SEACC and EPA's recently announced initiative relating to mountaintop mining.

                                                 THE COEUR ALASKA CASE

The last time we saw  Coeur Alaska, the company had just won their case before the United States Supreme Court and could fill a lake with sludge from their mining operations. They were allowed to do so because a Bush-era EPA policy, as set forth in a director's memorandum, said that it was acceptable for the Corp of Engineers to issue the permit without applying the performance standards of the Clean Water Act to the fill material.  The Court deferred to EPA's interpretation because it was "not plainly erroneous or inconsistent with the regulation[s].”

Here we are, eighty-one days since the decision and all you can say is what a difference a few days make.

                                                MOUNTAINTOP MINING REVIEW
 

On September 11th, EPA declared that all seventy-nine pending permits for mountaintop removal mining would be sent back for additional review under the term of the Clean Water Act. EPA’s concern is that these operations would “likely cause water quality impacts.”

Lisa Jackson, the EPA Administrator, attempted to emphasis that this was an "enhanced coordination process" between EPA and the Army Corps of Engineers and that it was not a change in policy. With all due respect to Ms. Jackson, I think she misspoke. It isn’t a change in law, but it is certainly a change in policy. She said as much when she told the Tampa Bay Press: “The whole permitting process had become a bit toothless.” In a year’s time, this EPA will have every molar, bicuspid, canine and incisor back in place (the jury is still out on the wisdom teeth).

                                                             THE IMPACT

The problematic holding of the Coeur Alaska case isn’t only what Coeur Alaska won, but how it won it. The Supreme Court reaffirmed that EPA has great discretion in all things environmental. In that case, the holding worked to the advantage of the business.  However,  that ruling (and others) also gives EPA the ability to quickly reverse the environmental policies of the past eight years.  I agree that to the victor goes the spoils and that changes in many areas are appropriate.  My concern is that when there is another change in EPA (one of those few guarantees in life), the road will almost certainly take a hard turn, this time to the right.  And when the inevitable happens, it will turn back yet again.

In the end, maybe switchback regulation is as necessary as switchback roads.  But while both will get you where you want to go, they certainly expend a lot of energy, and costs, to get there.  So what's the alternative?  Maybe something more permanent, like a tunnel or legislation, is preferable.  Sure they both have up front costs, but at least you minimize the whipsaw effect (that is so hard on brakes and business planning).

RELATED POSTS:  The Supreme Court and the Environment: Who Did They Really Help?

                              COEUR ALASKA, INC. VS. SEACC: When Is A Lake Really a Landfill?

                              ENTERGY CORPORATION VS. RIVERKEEPER, INC.

                              Clean Water and Mountaintop Mining No Longer Mix

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With a new sheriff in town, environmental change is a foregone conclusion. The only questions are how and when will change be made. Rules that are created to give effect to environmental statutes are where we can find the real heart and soul of environmental protection. Every modern-day president that has taken office has realized that he has a lot more power to quickly cause policy changes via rulemaking than through the ponderous process of legislation. As I have said before, President Obama is no exception and is already in the process of making significant changes to the environmental rules.

The only problem with the use of this power is that it does have some minimal safeguards in place – and apparently they were exceeded.

In April, Secretary of the Interior Ken Salazar asked the U.S. District Court for the District of Columbia to remand and vacate the Stream Buffer Zone rule. This was an 11th-hour rule change made by President Bush which made it easier to discharge water taken from mountaintop removal into streams. Salazar decided that this was a bad public policy and, according to him, it did not pass the “smell test.”

In ruling on the question, the D.C. Circuit Court said that, as discerning as Mr. Salazar’s nose might be, there is a right way and a wrong way to remove the odor. And Mr. Salazar’s attempt was the wrong way. In the words of the Court:

Here, the federal defendants seek a remand and vacation of the SBZ Rule without a determination on the merits that the SBZ Rule is legally deficient.

The Court finds no precedent to support the proposition that it should reward and vacate the SBZ Rule under the circumstances presented here. Moreover, the National Mining Association has the better argument that granting the federal defendants’ motion would wrongfully permit the federal defendants to bypass established statutory procedures for repealing an agency rule. The Administrative Procedures Act requires government agencies to follow certain procedures, including providing for public notice and comment, before enacting or amending a rule. An agency must follow the same procedure in order to repeal the rule.                        

In other words: Sheriff, the law says you have to have a town meeting before you close the saloon, so have the town meeting before you close the saloon.

It seems unlikely that the requirement that there be notice and an opportunity to comment will change the outcome in any manner, other than to slow things down a bit. But telling the sheriff that the law also applies to him is probably a good reminder that there’s a difference between a sheriff and, say, a king.

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I have read, with interest, several posts that describe the most recently concluded United States Supreme Court term as being a miserable year   for environmental interests. The authors point out that of the five cases addressing the environment, all of them resulted in reversals of decisions that had favored environmentalists. Based on this scorecard, the posts are quick to label the majority of members of this Supreme Court as being hostile to the environment and pro-business. Glenn Sugameli, an attorney with the environmental group Earth Justice, went so far as to say that he believes that the Court put on “pro-business blinders.”
 

While the outcome of the cases certainly did not advance environmental interests, I find it difficult to refer to the outcomes as pro-business. In fact, in three of the cases, the Court deprived the business community of what it needs most.
 

Businesses necessarily rely upon predictability. They need to know, to the greatest extent possible, that the rules of the game are not going to constantly shift. They need to know that government will not make major changes in the regulatory scheme and that they can plan future  purchases, hiring, markets, expansion and the like on rules that are not subject to daily variation. This is critical in the area of environmental regulation where a change in the rules can shift millions of dollars in costs. Business owners understand that there will always be some changes, but they expect it to occur through a cumbersome and combative process (a/k/a Congress). In short, they hope for some level of stability. By this measure, the Supreme Court did not do business a favor during this term.
 

In my previous post relating to Entergy Corp. v. Riverkeeper, Inc., I noted that the end result was that the Court has now accorded broad deference to EPA to determine when and where the agency will employ the use of a cost-benefit analysis. In a similar vein, I noted that in the Coeur Alaska, Inc. v. SEACC case, the Court deferred to EPA’s interpretation as found in an unpublished memorandum authored by the Director of EPA’s Office of Wetlands, Oceans and Watersheds.  In both of these cases, the Supreme Court was making it clear that EPA can change the rules as it sees fit and without public comment.  In several articles written about the Coeur Alaska case, the comment was made that, although the environmentalists lost that case, there would be an easy fix by asking the present administration to take action (presumably without the need for public comment) to repeal the interpretation of the rule that allowed the Supreme Court to rule in favor of Coeur Alaska.  

In Winter v. NRDC, Inc., the Court ruled that the needs and prior practices of the Department of the Navy should receive deference. As in Entergy and Coeur Alaska, this case resulted in substantially strengthening the hand of the governmental entity.
 

Though it is an admittedly small sample, I believe that the best way to label this Court is pro-government when it comes to environmental questions. Given the complexities of environmental regulation, I can’t say that I’m surprised at the rulings which, in effect, simply defer to the expertise of the agency.  What does surprise me is that the Roberts Supreme Court believes that making federal agencies more powerful and less accountable is a good result.
 

Moreover, the impact on many types of businesses is likely going to be significant in light of the political climate. It is an understatement to say that the Obama  administration’s view of environmental regulation is significantly different  from the view held by the Bush administration. With this Court’s seal of approval, changes in EPA regulations, guidance documents and unpublished memos are going to come fast and furious. If anyone really believes that it is “pro-business” for the Supreme Court to tell EPA that it has discretion to change the rules whenever it desires and without notice or public comment, I would question their definition.
 

I believe I can safely guarantee that a change in the presidency, like death and taxes, is a certainty at some time in the future. When that happens, the rules will change yet again. And for business, the lack of certainty, or at least relative stability, is anything but “pro-business.”
 

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In its final environmental ruling for this term, the United States Supreme Court went up against the fishes.  The fishes lost.

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the plaintiff mining company sought to pipe a slurry of 210,000 gallons of process wastewater and 1,440 tons of tailings each day to the bottom of Lower Slate Lake. The parties to the litigation agreed that the activities would fill the lake with solids and destroy all aquatic life. Upon conclusion of the mining operations, Coeur Alaska proposed to cap the tailings with four inches of native material and restore and expand the lake.

Since the lake was a water of the United States, Coeur Alaska needed a permit to discharge the slurry. The difficulty here was that the Clean Water Act provides for two distinct methods of getting a discharge permit. Under Section 404 of the Act, the Corp of Engineers can issue permits for discharge of “fill material," with EPA having the right to veto. Fill material is defined to be any material "that has the effect of . . . [c]hanging the bottom elevation of water."  For discharges of anything other than fill, Section 402 of the CWA requires EPA to issue permits pursuant to the effluent limitations of the Act. 

As one might imagine, EPA and the Corps occasionally disagree on who has jurisdiction, and such was the case with mining tailings.  In 2002, the Corps and EPA promulgated a regulation that defined fill material to include “tailing or similar mining-related materials.”  Still, the regulation failed to identify whether the fill material, that was subject to the Corps jurisdiction, needed to meet performance standards.

In a 2004 internal memorandum written by Diana Regas, the Director of EPA’s Office of Wetlands, Oceans and Watersheds during the Bush administration, Ms. Regas declared that EPA’s performance standards did not apply to discharges of fill material.

Based on this information, Coeur Alaska sought a discharge permit from the Corps of Engineers rather than EPA. The Corps determined that any environmental damage would be temporary and issued the permit. SEACC challenged the Corps decision and won at the 9th Circuit, but lost before the Supreme Court.

In a 6-3 decision, the High Court held that the terms of the CWA were ambiguous. The Court said:

Because Congress has not “directly spoken” to the “precise question” of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case.

Since the statute did not provide the answer, the Court attempted to determine congressional intent.  However, they found another road block in that there was no such indicia.  Next, the Court looked to agency regulation, but found it to be ambiguous. Stepping down one more rung, the Court looked to the subsequent interpretation of the regulation by EPA and found Ms. Regas' internal EPA memo that the performance standards do not apply to fill material.  The Court declared that the memo did not satisfy the Court's previous ruling in Chevron v. NRDC on what can be accorded deference by a court, but went on to say: 

The Memorandum presents a reasonable interpretation of the regulatory regime. We defer to the interpretation because it is not “plainly erroneous or inconsistent with the regulation[s].”

With that, the Supreme Court reversed the 9th Circuit and allowed Lower Slate Lake (presumably to be renamed Much Higher Slate Lake in the near future) to be filled with the slurry.

It must be said that this Court searches very hard for guidance. On the central question of whether performance standards apply to discharges of fill material, they found that:

• The statute had not “directly spoken” to the “precise question;”
• There was no indicia of Congressional intent;
• Agency regulations were ambiguous; and
• One internal agency memo, that had not been subject to public comment and which did not meet the Court’s previous cases to merit deference, was sufficient to justify the discharge.

That is one heck of a memo. For all those low level staffers and department heads who think that no one reads anything that they put in their reports, Ms. Regas would beg to differ. Those memos can have some real clout.

I would note that the oral arguments, as well as references in the opinion, indicated that several members of the Court were consoled by the fact that EPA had veto power and it did not exercise it in this case. If EPA didn’t see the need to veto it, why should the Court?  I suppose there are any number of ways to answer that question. Suffice it to say that a majority of this Supreme Court, reviewing a Bush-era EPA decision, felt that the answer was that it shouldn’t.
 

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I just noticed an interesting new law that was passed in the District of Columbia.  As of July 1, coal tar pavement dressings and sealants cannot be used or sold.  It was also banned in Austin, though that ban has been criticized. The D.C. ban, which is part of the District's storm water regulation, is designed to prevent polycyclic aromatic hydrocarbons (PAHs) from being washed off of parking lots and entering streams, rivers and Chesapeake Bay.  It was determined that the dust coming from parking lots sealed with coal tar products have concentrations of PAHs that are 80 times higher than the dust from unsealed parking lots.  While there is an alternative to the coal tar product, it has its deficiencies. 

For the entrepreneurial type out there, this is a trend worth following.  It used to be that we would allow  the conscience of the consumer to choose the environmentally better product.  When that didn't work, because most consumers buy the cheapest and/or most effective product (which is not often the environmentally friendliest choice), at least two legislatures came up with an alternative -- ban the product. This same reasoning can be found in the banning of phosphorus containing fertilizer. 

I'm not trying to be critical here, I'm just trying to point out a trend.  I would say that perhaps the next product to be considered could be char-broiled hamburgers, but my guess is that the burger lobby is a little stronger than the coal tar pavement dressing lobby.  But that's just a guess.

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I’ve noticed that a number of cities around the country are considering passing ordinances that would ban plastic bags at grocery stores.

I thought we were done with this discussion. Okay, I’ll end it now. As between paper grocery bags and plastic ones, plastic is the better choice for the environment. There, that one’s done.

Next topic: What does the term “better” mean?

That’s the real question, isn’t it? Like so many things environmental, what is "better" depends a lot on what you count.

Rather than rehash all the literature, I’ll just give you the highlights and you can decide:

• In 1999, 14 million trees were cut down to produce the 10 billion paper grocery bags used by Americans in that year;
• Paper sacks generate 70% more air and 50 times more water pollutants than plastic bags;
• It takes 594 BTUs of energy to produce a plastic bag and 2,511 BTUs for a paper bag;
• It takes 91% less energy to recycle a pound of plastic than it takes to recycle of pound of paper;
• In today’s landfills, neither plastic nor paper will degrade;
• It takes 12 million barrels of oil to produce the 100 billion plastic bags used in the U.S. annually;
• The average American family accumulates 60 plastic bags in only four trips to the grocery store.

With regard to one of the primary reasons to ban plastic bags -- the killing of animals -- David Santillo, a Greenpeace marine biologist, told the Times of London:

It's very unlikely that many animals are killed by plastic bags.  The evidence shows just the opposite.  We are not going to solve the problem of waste by focusing on plastic bags. It doesn’t do the Government’s case any favours if you’ve got statements being made that aren’t supported by the scientific literature that’s out there. With larger mammals, it's fishing gear that's the big problem.  On a global basis, plastic bags aren't an issue.  It would be great if statements like these weren't made.

Given the energy costs (and the CO2 implications), I would say that the plastic bag wins. At a minimum, it’s a wash and wouldn’t justify a change in the law. 

But in the end, that’s not really the point. Some would say that everything we throw away causes some level of harm to the environment.  (My belief that all landfills are just future archaeological treasure troves hasn't really caught on).  That’s why there is so much discussion about the bag debate being a false choice. If you deem it desirable to reduce the amount of environmental damage, you don’t do it by choosing one bad thing over another. In this case, that would just increase the use of paper bags, which is "worse" for the environment.  You do it by eliminating the waste stream all together. You do it by finding a way to get rid of the disposable bag.

The cities that are talking about passing laws to ban plastic bags are missing the point by ignoring the science.  Moreover, they are missing a golden opportunity.  If there is the political will to outlaw plastic bags, certainly there is the will to devise a solution that actually gets rid of the waste stream.     Maybe the bag debate isn't the most pressing environmental issue of the day.  But (and this is important for politicians) it is a visible one.  It's time to get creative.  Just don't make the problem worse by banning plastic bags. 

 RELATED POSTS: The Grocery Bag Dilemma: Some Suggested Solutions

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U.S. EPA Region 1 (Iowa is in Region 7) has recently issued two rulings relating to stormwater discharge permitting that could have a huge impact on existing businesses. In these two instances, EPA has decided, for the first time, to regulate stormwater runoff from impervious cover (such as parking lots and large buildings) from existing developments, regardless of how long they have been in existence.

In the first instance, EPA analyzed the Charles River Watershed in Massachusetts and determined that the impairment of the river was being caused by existing impervious cover from sites having two acres or more of impervious cover. As a result, the Massachusetts Department of Environmental Protection will be issuing stormwater permits to existing, previously unregulated businesses.
 

In the second instance, EPA determined that the Long Creek Watershed in Portland, Maine had a similar problem. Therefore, the Maine DEP will be issuing stormwater permits to any business which meets a one acre impervious cover limitation.

The states are currently promulgating the final rules that will determine exactly what will be required by their respective permits. Presumably, the permits will mandate that those properties which affect the watershed and are above the threshold impervious area limit will be required to, in some manner, treat the runoff from those areas prior to discharge into the impaired water.

Given the number of impaired waters in Iowa and across the country, the implications of these decisions is staggering. Until these rulings, stormwater permitting had applied only to a limited number of industrial facilities, new construction sites and MS4 cities. Should this rule be applied in Iowa, it will mean that fairgrounds, race tracks,commercial sites and retail facilities, to name a few, could be required to find a way to capture and treat the stormwater runoff coming from their facility, even if they have been in existence for 10, 20 or 50 years.

One lesson here is don’t buy asphalt futures – dirt parking lots will be making a comeback!
 

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I mentioned earlier that an important finding in Entergy v. Riverkeeper  was that EPA can now decide when it will use cost-benefit analysis in environmental regulation (unless "categorically prohibited"), the standard to be applied to that analysis (strict or loose) and that it may change that standard without notice.  I thought that the ruling was significant in that it put the power to use (and to quickly change the standard for) cost-benefit analysis firmly in the hands of the EPA Administrator, with all the political nuances therein.  Fearing that mine might be a somewhat cynical take on the decision, I thought it might be a good idea to seek a second opinion -- what did the losers think of the ruling?

The New York Times reported that Alex Matthiessen, the president of Riverkeeper, said:

We are disappointed, of course, that the court did not affirm the lower court's judgment in it its entirety, but nonetheless pleased that the court agreed that EPA is not required to use cost-benefit analysis and left it up to EPA on remand to decide to what extent, if any, cost-benefit analysis should be used in regulating cooling water intake structures.  We are looking forward to working with EPA's new administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the Clean Water Act's mandate that the adverse environmental impacts of cooling water intake structures be minimized.

Since EPA has not commented on the ruling, one might wonder why Mr. Matthiessen is so "confident."  It is likely that it has something to do with the fact that Lisa Jackson has a new job.  Ms. Jackson, formerly head of the New Jersey's Department of Environmental Protection, is now the Administrator of EPA.  New Jersey was one of six states that joined in the Entergy case -- in support of Riverkeeper.

Ms. Jackson has excellent credentials and I have no doubt that she will be a great administrator of an Agency that is going to be very busy for four or more years.  It must be helpful for her to know that on something as fundamental as the use of cost-benefit analysis, it's pretty much up to her as to when, and to what degree, it will be applied.                               

Sometimes it's funny how things work out.                            

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 Chalk this one up to old dogs and new tricks.

In a previous post, I discussed the politics of environmental law and the fact that, as a general matter, the Republican philosophy of environmental law is to consider costs versus benefits while the Democratic approach places considerably more emphasis on protecting the environment and much less on the cost of doing so. In many ways, this is at the heart of the differences between the parties when it comes to environmental regulation.

Since 1995, however, this difference hasn’t been very heavily debated because Republicans controlled Congress and, for the last eight years, the White House. During that time, EPA’s use of cost-benefit analysis has been fairly consistent. Not surprisingly, with a new sheriff in town (Democratic President and Democratic Congress), it has quickly become apparent that there will be significant changes in all aspects of environmental regulation. But given EPA’s historical use of cost-benefit analysis, how can it go about changing its tune? Let me ask it another way: If the President and this Congress want to make a change in environmental enforcement so that cost-benefit analysis plays a significantly reduced role, will it be like turning a barge or a speedboat? In light of the Entergy Corp. case, my guess is the latter.

In Entergy Corp. v. Riverkeeper, Inc., the United States Supreme Court addressed the issue of cost-benefit analysis in environmental regulation. Those who work in the area of the Clean Water Act are well aware of the five statutory standards found throughout the Act which are applicable to various situations. Those five standards are: 1) BTA (Best Technology Available); 2) BPT (Best Practicable Technology); 3) BATEA (Best Available Technology Economically Achievable); 4) BADT (Best Available Demonstrated Technology); 5) BCT (Best Control Technology). (I’ve always been consoled by the fact that each and every one of these standards is the “best”). If you did not have all of these committed to memory, don’t be embarrassed. The Court actually found it necessary to add an appendix to its opinion which set out the definition of the terms.

In the case, the Court was confronted with the question of whether the use of the BTA standard should include a balancing of costs against benefits. After conducting an analysis of the statutory language, the Court finally found that the choice is up to EPA. The Court could not identify any prohibition against EPA including a cost-benefit analysis in setting health and safety standards under BTA if it chose to do so. In the words of the Court:

 [I]t was well within the bounds of reasonable interpretation for the EPA  to  conclude that cost-benefit analysis is not categorically forbidden.

The Court then went on to look at what the EPA’s BTA standard actually was and determined that, historically, EPA had employed the standard that technology would not be required if the cost was “wholly disproportionate to the environmental benefit to be gained.” However, the standard employed in the case at bar was that the changes would not be required if the costs of compliance were “significantly greater than” the benefits of complying with the applicable performance standards. In discussing the change in terminology by EPA between these two standards, the Court said:

While the EPA’s prior “wholly disproportionate” standard may be somewhat different from its current “significantly greater than” standard, there is nothing in the statute that would indicate that the former is a permissible interpretation while the latter is not.

Maybe it’s been a slow month, but I find these statements very interesting. First, the Court found that use of the cost-benefit analysis is permitted because it isn’t “categorically forbidden.” Then the Court recognized that EPA has changed its standard, but approved the use of either one.

The partial concurrence and dissent by Justice Breyer took the Court to task. He agreed that the EPA could include a cost-benefit component but he felt that if EPA was employing a new and different test, it was incumbent on EPA to adequately explain why it had changed its standard. Since it had not done so, Justice Breyer would have ordered a remand to EPA so that EPA could either apply the traditional “wholly disproportionate” standard or provide an adequately reasoned explanation for the change.

It seems to me that Justice Breyer has a point. If EPA is going to change its standards (which could be change that would be either looser or tighter) from what it has been using for the past 5 or 10 years, maybe it should be required to explain itself. Maybe applying a particular standard on a business is tough enough without the possibility of that standard changing each time there is a change in the administration and/or the head of EPA. Maybe there is something to be said for consistent application of the environmental laws so that business can at least plan and prepare. Naaah...said the United States Supreme Court.

In my mind, the significant holding of the Entergy Corporation case is that on something as fundamental as the use and proper application of cost-benefit analysis, EPA has discretion to employ that analysis (unless categorically prohibited) and EPA (read that to be each new EPA administrator) can modify that standard with impunity and without notice. While the decision certainly allows an agency, in this case EPA, to quickly adjust to new political realities, it wreaks havoc with business planning.

I started this post by referencing the old-dog-new-tricks maxim. However, I would like it understood that I am certainly not calling EPA an old dog. All I'm trying to say is that EPA’s ability to change its standards without notice does seem to be a new trick . . . and that it’s a shame that the majority of the Court didn’t require EPA to notice up and justify the change before it bit someone with it.

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