As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.

Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.

In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.”  The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.

Functional Equivalent Factors to Be Considered

Rather than laying out a bright-line rule as to when a permit should be required as the parties had argued in the case, the Supreme Court articulated a number of factors that are relevant to making the determination on a case-by-case basis. Time and distance will be the most important factors, with the Court providing alternate examples of where permitting would and would not clearly apply. “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies.”  Conversely, “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”

To address cases that fall in between these two extremes, the Court also enumerated several additional factors. The opinion states that “the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels” may be relevant. Additional factors that may be relevant in specific instances include:  transit time, distance traveled, the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, the manner by or area in which the pollutant enters the navigable waters, and the degree to which the pollution (at that point) has maintained its specific identity. The Court also elaborated that federal permitting determinations pursuant to the functional equivalent test should preserve state authority to regulate groundwater and other nonpoint sources of pollution.

Maui Facts and Prior Ninth Circuit Holding

The Maui case focused on the County of Maui’s management of wastewater effluent from its wastewater treatment plant. The County would treat sewage and then inject it into wells for disposal. Subsequent tracer dye testing revealed that well discharges were reaching the Pacific Ocean in approximately 84 days through groundwater. In February 2018, the Ninth Circuit issued its opinion providing a “fairly traceable” standard to require permits for discharges that were “fairly traceable from the point source to a navigable water.”  The Ninth Circuit found that the tracer dye study and the County’s concessions proved that the fairly traceable standard was met. The County filed a petition for certiorari with the U.S. Supreme Court which the Court granted in February 2019, limiting the case to “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”  The Court also deferred action in other appeals regarding the same issue.

Likely Ramifications

In the opinion, the Supreme Court acknowledges the challenges of applying the “functional equivalent” test, especially in cases where time and distance are not determinative. The Court invites lower courts to provide guidance through decisions in individual cases, which is likely to open the flood gates to additional litigation on the issue. According to the Court, lower courts can also mitigate against any injustices associated with tests’ implementation by exercising their discretion under the CWA to invoke lower penalties. At the same time, the Court states that EPA “can provide administrative guidance (within statutory bounds)” including through granting “individual permits, promulgation of general permits, or the development of general rules.”

Justice Kavanaugh joined the majority but filed a separate concurring opinion emphasizing the consistency of the Court’s opinion regarding pollution “from” point sources with the interpretation set forth in Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U. S. 715 (2006). Justices Thomas (joined by Justice Gorsuch) and Alito filed dissenting opinions, criticizing the lack of clarity in the majority’s opinion. Justice Thomas would strictly adhere to the CWA’s text and would only require a permit when a point source discharges pollutants directly into navigable waters. Justice Alito’s dissent focuses on the lack of consistency which “invites arbitrary and inconsistent application.”

Although the Court’s opinion provides a general direction on a historically controversial issue, it will cause a significant degree of uncertainty for the foreseeable future. EPA may provide further clarity through guidance or a rulemaking, though such a rulemaking will likely be subject to additional legal challenges. In the meantime, we are likely to see a range of interpretations and applications of the Court’s factors across different EPA regions and states with lower courts subsequently applying varying weight to those factors.

The Court’s opinion does not appear to affect the Fourth Circuit’s 2018 decision in Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403 (4th Cir. 2018) which may provide one possible defense in any future challenges in the wake of the Supreme Court’s opinion. Even if a court were to find that a discharge through groundwater is the “functional equivalent” of a piped discharge applying the Supreme Court’s new factors, the Fourth Circuit provided in Sierra Club a possible defense that such discharges may nonetheless not originate from a “point source” and thus not be subject to NPDES permitting. In that case, the alleged “point source” was a large coal ash landfill which the Fourth Circuit found not to qualify as a point source.

For additional information regarding the Supreme Court’s opinion and its implications, please contact Brooks M. Smith, Andrea W. Wortzel, E. Fitzgerald Veira, Byron W. Kirkpatrick, Patrick J. Fanning, Ashley Cameron or Rich Pepper.

On April 22, 2020, EPA published an interim final rule providing relief to sources that are subject to the quality assurance testing and reporting under 40 CFR Part 75. The initial summary of the rule indicates the policy applies to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. However, the rule itself indicates that relief is available to any source that reports emissions to EPA under 40 CFR part 75. EPA expects the rule will provide relief for hundreds of facilities that would otherwise be required to conduct over a thousand quality assurance tests combined during the next three months in the midst of the ongoing pandemic.

The rule adopts a new provision (40 CFR § 75.68) to address failure to meet a deadline for a required quality-assurance, certification or recertification, Appendix D fuel analysis, Appendix E and low mass emission rate tests (e.g., relative accuracy test audits, linearity checks) due to COVID-19-related travel, plant access, or other safety restrictions. The rule allows the unit’s actual monitored data to remain valid despite the delayed tests (so long as otherwise valid), allowing the unit to temporarily continue to report actual monitored data instead of “substitute” data. Importantly, the rule does not suspend requirements to monitor or report emissions for every operating hour of a control period, or alter any existing emissions limitations and, thus, the rule will not have any effect on actual emissions.

The EPA recognized that under the existing Part 75 regulations, missing a test deadline and using substitute data can be very costly for a source. Avoiding the need to use substitute data is helpful because “substitute data are intentionally conservative (i.e., high-biased), causing the emissions reported for the source to be higher,” up to and including maximum potential to emit values instead of recorded data. Use of substitute data could increase the number of emission allowances that covered facilities may need to hold, even though emissions have not actually changed.

To qualify for relief, sources must maintain documentation, notify the EPA when a test is delayed and later completed, and certify to the EPA that the data are otherwise valid and that the delay was caused by the pandemic. Notifications may not contain confidential business information and must be submitted by email to camdpetitions@epa.gov within 5 days after the deadline, and the EPA will post summaries of the notifications on a publicly accessible website.

The interim final rule is immediately effective, but the EPA seeks comments, due 30 days after publication on May 22, 2020.

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s repeal and replace approach clears up years of uncertainty in the wake of the Obama Administration’s 2015 rule. The final rule, called the “Navigable Waters Protection Rule,” will become effective on June 22, 2020.

The final rule repeals the Obama Administration’s hotly contested 2015 rule, which broadly defined the term “waters of the United States” and was interpreted to include waters with a “significant nexus” to jurisdictional waters. Determining if waters had a “significant nexus” to jurisdictional waters under the 2015 rule often required case-specific analysis or the hiring of a consultant to assist with a jurisdictional determination and sometimes led to inconsistent application of the rule in different regions. In an effort to eliminate the subjectivity associated with determining whether waters have a “significant nexus” with jurisdictional waters, the Trump Administration’s final rule narrows the definition of “jurisdictional waters” by creating four discrete categories of jurisdictional waters, while identifying eleven categories of non-jurisdictional waters. These changes, which we summarized in a previous blog post, were made to provide clarity in response to a litany of challenges to the geographical scope of the 2015 rule.

As with the 2015 rule, challenges to the final rule are inevitable. On January 22, 2018, the United States Supreme Court held that challenges to the definitional rule must be brought in the United States District Courts, as opposed to circuit courts. As a result, environmental groups, as well as many Democratic-led states, are likely to flood the District Courts with challenges, creating the potential for a patchwork of outcomes similar to the challenges of the 2015 rule which resulted in some states being subject to the 2015 rule while others were subject to the regulatory interpretation of Waters of the U.S. in place prior to the 2015 rule after the Trump Administration’s repeal rule went into effect. A critical component of the challenges to the final rule will be whether any District Court grants a nationwide injunction of the final rule. The Supreme Court has recently criticized nationwide injunctions and the U.S. Department of Justice (“DOJ”) has issued guidance opposing such sweeping relief, but courts continue to issue such injunctions. The Trump Administration’s repeal rule, which is also currently being challenged, sought to ensure that in the instance the final rule is broadly enjoined, CWA jurisdiction will revert to the regulatory interpretations in place prior to the 2015 rule.

One other critical component will be whether states take steps to fill in any perceived gaps between the final rule’s jurisdiction and their own, often broader definitions of state waters. The final rule emphasizes the CWA’s cooperative federalism and seeks to appropriately limit federal jurisdiction while allowing states to assert their own jurisdiction to regulate land and water resources within their borders.

For more information on the implications of the publication of the Navigable Waters Protection Rule and its implementation, please contact Brooks M. Smith, Andrea W. Wortzel, E. Fitzgerald Veira, Byron W. Kirkpatrick, Patrick J. Fanning, or Ashley Cameron.

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.

Continue Reading State and Environmental Group Opposition to EPA’s COVID-19 Enforcement Discretion Policy Intensifies

The Chemical Safety and Hazard Investigation Board’s (“CSB’s”) long-awaited accidental reporting rule became effective on March 23, 2020. Under the new rule, 40 C.F.R. §§ 1604.1-1604.6, owners and operators of chemical facilities must report accidental releases that result in fatalities, substantial injury, or substantial property damage over a million dollars. This requirement includes reporting of releases that result in in-patient hospitalization, even if the hospitalization is taken as a precautionary measure.

Continue Reading New Chemical Release Reporting Rule

Authors

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

The U.S. Department of Justice (DOJ) is quietly taking steps to provide financial relief during the COVID-19 pandemic. In an April 14 model letter, DOJ offered to temporarily suspend its collection of stipulated penalty payments owed under some consent decrees through at least May 31, 2020. Notably, the letter also stated that DOJ will advise as to whether the suspension will be extended beyond May 31, 2020 and that if a party simply does nothing in response to the notice, DOJ will not seek collection of the debt until after May 2020. The letter is signed by Joseph Davis, Chief of the Case Management Unit of DOJ’s Environment & Natural Resources Division (ENRD) Environmental Enforcement Section.

Continue Reading Department of Justice Offers Reprieve from Stipulated Penalty Payments Through at Least May 31, 2020, in Response to COVID-19

In a surprisingly broad decision, the District of Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP”) 12 on April 15, 2020.  NWP 12 authorizes impacts from “utility line activities” to jurisdictional waters that have minimal individual and cumulative adverse environmental effects. “Utility line” is broadly defined to include pipelines and any cable, line, or wire for the purpose of transmitting electricity or communication. The court found that the Corps failed to comply with the Endangered Species Act (“ESA), and thus remanded NWP 12 to the Corps for consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”) in accordance with Section 7 of the ESA. The court’s order prohibits the Corps from authorizing “any dredge or fill activities under NWP 12 pending completion of the [ESA Section 7] consultation process.”

Continue Reading Montana District Court Vacates and Remands Clean Water Act Nationwide Permit 12

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility.  For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit.  But on March 25, 2020, EPA proposed new guidance to clarify that, according regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself.

Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit

Authors
Todd C. Fracassi, Partner, Pepper Hamilton
Mitchell L. Guc, Associate, Pepper Hamilton
Andrea L. Rimer, Partner, Troutman Sanders
Randy E. Brogdon, Partner, Troutman Sanders

On April 10, the U.S. Environmental Protection Agency’s (EPA’s) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) jointly released a memorandum to all EPA Regional Administrators regarding the suspension, reduction or continuation of on-site cleanup activity in the wake of the COVID-19 pandemic. The memorandum supplements earlier guidance released on March 19 outlining OLEM’s management considerations and posture in response to COVID-19, which is included as an attachment to the April 10 guidance.

Continue Reading EPA Issues Guidance for On-Site Cleanup Activity Suspension, Reduction or Continuation in Response to COVID-19