For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy. Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate. The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Haw. Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018); Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018).
Continuing its vanguard approach to environmental regulation, California is poised to incorporate Total Maximum Daily Load (TMDL)-specific requirements into its industrial storm water general permit (IGP). TMDLs are pollutant- and water body-specific and establish the maximum amount of a pollutant a water body can receive while meeting water quality standards. Once effective, these new requirements will provide additional avenues of attack for the already active Clean Water Act citizen suit docket. Continue Reading TMDL Limits Are Coming To California’s Industrial Storm Water General Permit
The U.S. Court of Appeals for the Second Circuit in July issued a long-awaited decision in the case Cooling Water Intake Structure Coalition v. U.S. Environmental Protection Agency (EPA), upholding the EPA’s 2014 Rule establishing requirements pursuant to Clean Water Act (CWA) section 316(b) for cooling water intake structures (CWIS) at existing facilities. The court also upheld the biological opinion (BO) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) on the 2014 Rule.
The Second Circuit’s decision upholding the rule offers EPA a key victory and provides larger steam-electric power plants and manufacturing facilities more certainty regarding regulatory requirements they must satisfy to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the CWA.
This summer, California’s State Water Resources Control Board (State Water Board) adopted amendments to the Underground Storage Tank (UST) Regulations (California Code of Regulations, title 23, division 3, chapter 16). The new regulations, which become effective on October 1, 2018, impose new design and construction, upgrading, monitoring, notification, testing, inspection, recordkeeping, training and reporting requirements on UST owners and operators in California. The State Water Board’s purpose in amending these regulations was essentially two-fold: (1) to effectively make the California UST regulations just as stringent, and consistent with, the federal UST regulations (part 280 of 40 Code of Federal Regulations); and (2) to reduce the risk of groundwater contamination resulting from UST releases. Continue Reading California State Water Board Amends Underground Storage Tank Regulations to “Reconcile” Requirements with Federal Law
As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start. Continue Reading EPA Announces Shift from National Enforcement Initiatives to National Compliance Initiatives
In May, EPA issued its 2016 Final Effluent Guidelines (ELG) Program Plan, which is EPA’s first screening step to selection of industries for possible revision or development of technology-based limits on wastewater discharges (i.e., effluent limitations guidelines and standards (ELGs)). 83 Fed. Reg. 19281 (May 2, 2018). EPA releases a new ELG plan every two years, and the process bears watching because it cuts across all industry types (there are 59 industries with final ELGs in place) and provides some perspective on EPA’s assessment of pollutants of concern and emerging technologies to address those pollutants. Continue Reading EPA’s Effluent Guidelines Program Plan: Roadmap to Technology-Based Water Regulation
The US District Court for the Middle District of Louisiana ordered the $750 million Bayou Bridge pipeline to halt construction within the Atchafalaya Basin when it concluded that the US Army Corps of Engineers’ environmental analysis likely violated the National Environmental Policy Act and the Clean Water Act due to the following deficiencies:
- The Corps did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction; and
- The Corps failed to sufficiently consider and address historical impacts to wetlands from past pipeline projects in the cumulative effects analysis.
On appeal, however, the US Court of Appeals for the Fifth Circuit overturned the lower court.
As explained in an earlier post, PFAS (per- and polyfluoroalkyl substances) are highly fluorinated manmade compounds that are reported to have a variety of adverse health effects. PFAS are resistant to heat, water and oil. These properties have led to use of PFAS compounds in a wide-range of products designed to be waterproof, stain‑resistant or non‑stick, such as carpets, furniture, cookware, clothing and food packaging. They are also used in fire retardant foam at airfields and industrial processes involving flammable and combustible liquids. PFAS compounds are resistant to chemical breakdown. This property, combined with their extensive use, explain why PFAS compounds are being found in drinking water supplies throughout the country. Continue Reading California Ramps Up Regulation of PFAS Compounds
What is California’s Proposition 65?
California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) is one of the most onerous chemical right-to-know statutes in the nation. It prohibits businesses with 10 or more employees, including businesses that merely ship products into California, from exposing people in California to listed chemicals without providing a “clear and reasonable” warning.
Why Should I Care?
Bringing a Prop 65 action is relatively easy and lucrative for private plaintiffs and their counsel. In 2017, there were nearly 700 cases settled with defendants paying more than $25,000,000 in plaintiffs’ attorneys fees and penalties. This does not include defense counsel fees, business interruption and other costs to comply. Continue Reading New California Proposition 65 Warning Regulations: What Businesses Need To Know Before August 30, 2018
As the spotlight continues to focus on the City of Flint and its efforts in response to its public health crisis four years ago, water utilities seeking to avoid similar liability (and notoriety) should study Flint as a veritable textbook on potential liability under the federal Safe Drinking Water Act (SDWA), the US Constitution, and state law. Part 1 of this series noted that a spate of civil lawsuits and criminal charges were filed in the aftermath of Flint. These cases are still unfolding in the courts. Continue Reading Liability for Exposure to Lead in Drinking Water (Part 2)