Balch & Bingham LLP

This Week in Environmental History (March 1 - March 7)

Wed, 03 Mar 2010 14:32:22 GMT

On March 1, 1872, President Ulysses S. Grant signed into law Senate Bill 392, "An Act to set apart a certain Tract of Land lying near the Head-waters of the Yellowstone River as a public Park." The "Tract of Land" in question is today's Yellowstone National Park, the first national park in the United States (and, in fact, the first in the world). Yellowstone National Park is located predominately in Wyoming and covers nearly 3,500 square miles -- larger than Rhode Island and Delaware combined. Administered by the Secretary of the Interior, the park actually pre-dated the establishment of the National Park Service by over four decades. Today's NPS administers nearly 400 National Parks in the United States and its territories. Posted by Jim Noles, Balch & Bingham LLP.

Fifth Circuit Agrees to Re-Hear Comer Global Warming Case

Thu, 04 Mar 2010 10:56:36 GMT

On August 29, 2006, Hurricane Katrina slammed into the United States mainland, causing extensive damage to many areas, including the Mississippi Gulf coast. Business Week reports:

Two days after hurricane Katrina smashed into the Gulf coast, F. Gerald Maples returned to his hometown of Pass Christian, Miss., to utter devastation. Most of his neighbors’ houses were totally destroyed. His was in ruins. “It broke our hearts and absolutely changed our lives,” he says. It also made Maples, a veteran asbestos plaintiffs’ attorney in New Orleans, determined to fight back. “I couldn't stand by when my entire cultural history was destroyed by an event that could become more frequent because of global warming,” he says.

GLOBAL WARMING: HERE COME THE LAWYERS, Business Week, October 24, 2006. In the weeks following the storm, Maples filed a class action suit on behalf of fourteen Mississippi landowners in the U.S. District Court for the Southern District of Mississippi. The lawsuit named five oil company defendants and seven insurance company defendants. With regard to the insurance companies, the plaintiffs claimed that certain “flood” and “water damage” exclusion provisions contained in their policies were void and unenforceable as violations of the public policy of Mississippi. As to the oil company defendants, the plaintiffs claimed that the oil companies were engaged in activities that produce environmentally harmful by-products leading to the development and increase of global warming, which in turn, produced conditions causing Hurricane Katrina to grown in strength and size, thus causing extensive death and destruction.

Only ten days after the plaintiffs filed their original complaint, they filed a First Amended Class Action Complaint adding three mortgage company defendants and claiming that the mortgage company defendants failed to independently secure proper and sufficient insurance to protect the plaintiffs’ insurable interests in the mortgaged properties.

Very little activity occurred in the case until January 31, 2006, when the plaintiffs filed a Motion for Leave to File a Second Amended Class Action Complaint seeking to name a new oil company defendant, three new mortgage company defendants and four chemical company defendants. On February 23, 2006, Judge L.T. Senter, Jr. denied the motion, noting that “[e]ach property owner in Mississippi who had real and personal property damaged in Hurricane Katrina is uniquely situated. No two property owners will have experienced the same losses.” Memo. Op. at 2. Additionally, “[g]iven the preponderance of individual questions of damage, coverage, policy provisions, mortgage obligations, and the other relevant particulars involved in the case of each individual property owner who sustained damage as a result of Hurricane Katrina,” the Court required the plaintiffs to “pursue individual actions limited to their own insurers and to their own mortgage lenders” and dismissed all of the insurance and mortgage companies from the case. Memo. Op. at 4. However, Judge Senter allowed the plaintiffs to file a Third Amended Class Action Complaint by March 27, 2006 “to clarify their claims against [the remaining] defendants and to add any additional parties that the plaintiffs intend to bring in to this litigation.” Memo. Op. at 5. The Court concluded the Memorandum Opinion with the following observation:

there exists a sharp difference of opinion in the scientific community concerning the causes of global warming, and I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gasses; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gasses, to global warming; and the extent to which the emission of greenhouse gasses by these defendants, through the phenomenon of global warming, intensified or otherwise affected the weather system that produced Hurricane Katrina. This is a task that the plaintiffs are free to undertake if that is their intention, and I am confident that due consideration will be given to the requirements of Rule 11, F.R.Civ.P. Under Rule 20, F.R.Civ.P., these claims cannot be litigated in a single action that also includes the plaintiffs’ contractual claims against their insurers and their mortgage lenders.
Mem. Op. 5-6.

Belatedly, on April 19, 2006, the plaintiffs filed a Third Amended Class Action Complaint naming new oil companies, chemical companies, coal companies and numerous electric utilities as new defendants. As to the chemical, coal and utility defendants, plaintiffs claim: (1) the defendants burn or supply coal that releases or emits CO2; (2) that the CO2 has contributed to global warming; (3) that global warming caused Hurricane Katrina to form and intensify; and (4) that Hurricane Katrina caused damage to the plaintiffs’ lives and properties. As to the oil company defendants, the plaintiffs claim the oil companies have been unjustly enriched by fraudulently inflating gasoline prices. The plaintiffs also specifically allege that the American Petroleum Industry and other oil company defendants have engaged in tortious civil conspiracy by hiring lobbyists “to intentionally decrease public awareness and divert public policy away from the real dangers associated with Global Warming.”

On August 30, 2007, the U.S. District Court for the Southern District of Mississippi determined that the plaintiffs lacked standing to sue because they could not show how any of defendants’ actions had caused damage to any plaintiff. The district court also held that the plaintiffs’ claims raised “political questions” that the Court lacked jurisdiction to hear.

Last October, the United States Court of Appeals for the Fifth Circuit disagreed and reversed this decision (in part), remanding the case to the district court. The Fifth Circuit opinion held that "the Plaintiffs' claims easily satisfy Mississippi's 'liberal standing requirements,'” thus permitting them to move forward with theirnuisance, trespass and negligence claims. Comer v. Murphy Oil, 585 F. 3d 855, 862 (5th Cir. 2009). The court also determined that none of the claims present nonjusticiable political questions because the only issues are those inherent
in the adjudication of Mississippi common law tort claims for damages, which are not committed exclusively to a federal political branch. 585 F.3d at 869.

The defendants filed a petition for rehearing en banc, seeking rehearing based on the panel’s application of Baker v. Carr, 369 U.S. 186 (1962), the landmark political question case, and based on the panel’s ruling on standing. On February 26, 2010 the Fifth Circuit granted the petition for rehearing en banc. 2010 WL 685796 (5th Cir. Feb. 26, 2010). A supplemental order requires briefs from appellants on March 31 and from appellees on April 30. The court has set oral argument during the week of May 24, 2010. For more information, contact Mike Freeman at (205) 226-3432 or mfreeman@balch.com. Posted by Bruce Barze, Balch & Bingham LLP.

U.S. Fish & Wildlife Service Proposes to List Farm-Raised Snails as Endangered

Fri, 05 Mar 2010 16:49:55 GMT

The U.S. Fish & Wildlife Service is proposing to list as endangered a population of interrupted rocksnails (Leptoxis foremani) that was propagated in captivity and reintroduced into the wild by the Alabama Department of Conservation and Natural Resources (“ADCNR”). See 74 Fed. Reg. 31114 (June 29, 2009). On February 10, 2010, the Service announced the availability of a draft economic analysis for the proposed designation of critical habitat for these “farmed” species. See 75 Fed. Reg. 6613 (Feb. 10, 2010).

In December of 2003, ADCNR released over 3,000 interrupted rocksnails into a localized area in the Lower Coosa River, about two miles below Jordan Dam, near Wetumpka, Alabama. ADCNR propagated the snails in captivity at its Alabama Aquatic Biodiversity Center in Marion, Alabama. ADCNR stocked this population without seeking designation of the population as “experimental” under Section 10(j) of the ESA, and without soliciting public comments on the reintroduction, which is the usual practice when reintroducing imperiled species. Thus, the farmed snails will have the full protection of the Endangered Species Act (ESA) if the listing is finalized.

Along with the interrupted rocksnail, the Service also proposes to list the rough hornsnail (Pleurocera foremani), and the Georgia pigtoe mussel (Pleurobema hanleyianum). In total, the Service proposes to designate approximately 160 miles on parts of eight rivers and streams in Alabama, Georgia, and Tennessee, as critical habitat for the mussel and snails. Approximately 63 miles of the proposed area is designated for the interrupted rocksnail. The draft economic analysis was released pursuant to the ESA, which requires the Service to consider the potential economic impact associated with the proposed critical habitat designation. An area may be excluded from critical habitat designation if the benefits of excluding it outweigh the benefits of including it.

Public comments on the proposed listing, critical habitat designation, and draft economic analysis for these three species are due March 12, 2010. The Service will hold a public hearing from 7 to 10 p.m. on Tuesday, March 2, 2010, in Montgomery, Alabama, at Auburn University’s Taylor Center conference room.

Eight public comments were submitted in response to the initial notice of the proposed listing in June. Public comments received include comments from the Alabama Aquatic Biodiversity Center and ADCNR supporting the proposal, comments from the Department of Energy Southeastern Power Administration expressing concern over the proposals effect on its ability to meet customer contractual requirements for power generation and comments from Southeastern Federal Power Customers, Inc. suggesting that the designation of the critical habitat units is not supported by sound science or sufficient data. The Mobile District of the Corps also submitted comments stating that it would submit more in-depth comments when the economic analysis was published. To review these comments, go to www.regulations.gov, and enter FWS-R4-ES-2008-0104.

This Week in Environmental History (March 8-March 14)

Mon, 08 Mar 2010 08:28:17 GMT

Fifteen years ago this week, on March 9, 1995, the U.S. Fish and Wildlife Service removed three species of Australian kangaroo -- the red kangaroo, the eastern gray kangaroo, and the western gray kangaroo -- from its list of threatened species. FWS based its decision on a determination that these species had sufficiently recovered since their original listing as threatened species on December 30, 1974. Although FWS' decision to delist the species in 1995 faced opposition at the time from environmental and animal rights groups, the decision, in hindsight, seems warranted. As of 2006, Australia was reporting nearly 8 million red kangaroos, over 10 million eastern gray kangaroos, and some 2.6 million western gray kangaroos in the wild. For more information on "recovered species" under the Endangered Species Act, visit http://www.animallaw.info/articles/arus39cumblrev387.htm. Posted by Jim Noles, Balch & Bingham LLP.

EPA Seeks to End Run ADEM Permitting Authority for Coal Mines

Fri, 12 Mar 2010 11:18:09 GMT

EPA's efforts to impose additional (and in some cases impossible) conditions on coal mining operations has found its way to Alabama. In a recent letter to the Corps of Engineers, EPA is seeking burdensome and unprecedented conditions on a coal mine in Alabama--Flat Rock Mine #2. This is the first concrete example of EPA's new approach to coal mining in Alabama.

EPA is seeking--through the Corps permitting process--to impose discharge limitations and monitoring requirements for the entire mine operation. These are things properly found in state-issued NPDES permits. EPA's effort is a clear end-run around the NPDES process, and it infringes on ADEM's Section 401 and 402 permitting and certification authority. Read the full EPA letter here.

District Court Dismisses Most Allegations Against Midwest Generation in a Clean Air Act Lawsuit

Sat, 13 Mar 2010 08:43:37 GMT

In one of the more extreme cases of over-reaching in a world of long-armed bureaucrats, EPA sued Midwest Generation for alleged modifications to 6 power plants in the Chicago area made by Commonwealth Edison prior to selling the plants to Midwest Generation. Espousing a rare form of the government's "continuing violation" theory, EPA argued that Midwest Generation was liable for operating the plants they alleged had been illegally modified even though Midwest Generation did not perform the modifications. On March 9, 2010, the District Court dismissed 9 of the 10 PSD claims, preserving only one where a factual dispute remained over whether Midwest was involved in the alleged modification. The Court decided that DOJ's continuing violation theory (and all the statutory interpretation bootstraps they grabbed to pull it along) was inconsistent with the plain language of the Clean Air Act and the PSD regulations. The Court also dismissed all related claims for civil penalties based on expiration of the 5-year statute of limitations since the modifications were alleged to have occurred.

Click here to read the opinion.

This Week in Environmental History (March 14-March 21)

Sun, 14 Mar 2010 08:35:31 GMT

On March 14, 1903, President Theodore Roosevelt issued an executive order declaring Pelican Island, Florida, as the nation's first federal bird reservation. As such, it is considered America's first National Wildlife Refuge.

Pelican Island is situated on Central Florida's Atlantic Coast and located within the Indian River Lagoon near the town of Sebastian. Consisting of 5,413 acres, it provides a critical bird rookery for some sixteen species of birds, to include the endangered wood stork. The refuge also provides critical habitat to several other endangered and threatened species, to include the manatee, the loggerhead sea turtle, the green sea turtle, and the Southeastern beach mouse.

Roosevelt declared Pelican Island a federal bird reservation in response to the depradations of so-called "plume hunters" and egg collectors who, at the end of the 19th century, has essentially wiped out the island's population of herons, egrets, and spoonbills.

Today, the US Fish and Wildlife Service's Refuge System boasts some 550 National Wildlife Refuges. For more information on Pelican Island National Wildlife Refuge, visit http://www.fws.gov/pelicanisland/.

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Judge Orders ADEM to Increase Penalties Against Developer

Wed, 17 Mar 2010 09:56:56 GMT

Last Wednesday, Montgomery County Circuit Court Judge Charles Price issued an Order finding that the Alabama Department of Environmental Management (ADEM) had failed to assess the statutory minimum penalty in an Administrative Order it issued to a developer for alleged stormwater violations. A copy of Judge Price’s Order is here. Although the amount of penalties assessed by ADEM in Administrative Orders is frequently challenged, this is the first time a court has ordered ADEM to increase the amount assessed—in this case, from $20,000 to $120,500.

The challenged Administrative Order was issued by ADEM to SDW, Inc., the developer of the Williamsburg subdivision in Tuscaloosa County, Alabama and assessed a penalty of $20,000 for violations the Court found continued for 1,205 days. A citizen’s group, Friends of Hurricane Creek (FoHC), challenged the Administrative Order and requested a hearing before the Alabama Environmental Management Commission, contending that the penalty was too low because it was not assessed at the $100 per day minimum amount provided in the Alabama Environmental Management Act. Without deciding on the merits of the challenge, the Commission found that FoHC was not an “aggrieved” party and issued an order dismissing the request for hearing for lack of jurisdictional standing.

FoHC appealed the Commission’s dismissal to the Montgomery County Circuit Court and moved for summary judgment, arguing that the Commission’s conclusion that they were not aggrieved was erroneous and asking the court to remand the matter to the Commission to enter an order on the merits. While the only issue on appeal appeared to be whether the Commission correctly dismissed the request for hearing for lack of standing, the court's order bypassed that issue and went straight to the question of whether the penalty was adequate. Noting that pursuant to Alabama Code § 22-22A-5(18) (c), “any civil penalty assessed . . . shall not be less than $100.00 or exceed $25,000.00 for each violation, provided however, that the total penalty assessed in an order issued by the department . . .shall not exceed $250,000.00. Each day such violation continues shall constitute a separate violation for purposes of this subdivision,” Judge Price found ADEM’s assessment of $20,000 for alleged violations “is a violation of the statutory minimum, which must be imposed at $100 per violation and $100 per day for each day of continued violation,” and ordered ADEM to “assess a civil penalty in the amount demanded by the statute for the violations cited” in the Administrative Order.

This decision is questionable considering the court failed to address the threshold question of whether FoHC had standing as an "aggrieved party" to request a hearing before the Commission. ADEM is considering an appeal of the ruling, but has not yet decided if it will do so. Any appeal would have to be filed with the Alabama Court of Civil Appeals.

Update on Climate Change Litigation

Fri, 19 Mar 2010 16:23:39 GMT

In a newsletter article for the International Association of Defense Counsel, Bruce Barze and Alexia Borden provide an update on three major climate change (aka "global warming") lawsuits pending in CA, CT, and MS. Click on this link to read the article.

This Week in Environmental History (March 22 - March 29)

Mon, 22 Mar 2010 08:47:07 GMT

Speaking in his first inaugural address on March 21, 1933, President Franklin D. Roosevelt called for the creation of a "civilan conservation corps" and, that same day, presented Senate Bill 5.598 (the Emergency Conservation Work Act) to Congress. FDR's corps would, in his words, "be used for simple work, not interfering in normal employment, and confining itself to forestry, the prevention of soil erosion, flood control, and similar projects."

The ECWA established an initial enrollment of 250,000 men in what became known as the Civilian Conservation Corps, or CCC. By the time the program ended in 1941, more than 3 million men served in the CCC. The CCC was widely regarded as among the most popular and succcessful of FDR's New Deal programs, with a legacy that included more than 3,470 fire towers erected; 97,000 miles of fire roads built; 4,235,000 man-days devoted to fighting fires; more than 3 billion trees planted; 7,153,000 man-days expended on protecting the natural habitats of wildlife; drainage systems constructed for more than 84,400,000 acres of good agricultural land; 1,240,000 man-days of emergency work completed during floods of the Ohio and Mississippi valleys; disease and insect control; forest improvement (timber stand inventories, surveying, and reforestation); and forest recreation development (campgrounds built, complete with picnic shelters, swimming pools, fireplaces, and restrooms).

Senate Committee Passes Cybersecurity Legislation

Wed, 24 Mar 2010 09:40:43 GMT

Earlier today, the Senate Commerce Committee approved S. 773, the Cybersecurity Act. At the outset of the hearing, Chairman Jay Rockefeller (D-WV) observed that we are starting "almost in kindergarten" on cybersecurity, meaning the federal government's efforts have not yet caught up with the significance of the issue. Sen. Kay Bailey Hutchison (TX), the ranking Republican on the committee, spoke in favor of the bill and indicated that it had been developed in a bipartisan manner. The bill passed without a recorded vote, a further indication of consensus within the committee.

If enacted into law, the bill would, among other things:

authorize the National Institute of Standards and Technology (NIST) to "establish measurable and auditable cybersecurity standards" for federal agencies, government contractors, and certain "critical infrastructure information systems and networks" that receive federal grants;
require "each Federal agency, and each operator of an information system or network designated by the President as a critical infrastructure information system or network, periodically to demonstrate compliance" with NIST's cybersecurity standards;
authorize the Department of Commerce to "develop or coordinate and integrate a national licensing, certification, and periodic recertification program for cybersecurity professionals";
require the development of a "public-private clearinghouse," including new regulations to provide for the sharing of cybersecurity threat and vulnerability information between federal agencies and "private sector critical infrastructure information systems and networks owners"; and
require the President to "develop and implement a comprehensive national cybersecurity strategy" within one year of enactment.

Earlier this year, the House of Representatives passed H.R. 4061, the Cybersecurity Enhancement Act of 2010. That legislation addresses much of the same subject matter, though in different ways. The fact that both Houses of Congress have approved cybersecurity legislaton, as well as broad bipartisan support for the concept, may indicate that further favorable action on S. 773 or H.R. 4061 is relatively likely.

The next step in the Senate is for the Commerce Committee to develop a committee report and send an amended version of S. 773 to the full Senate. The bill then will be eligible for consideration on the Senate floor. We'll keep an eye out for further developments and post more information here as it becomes available.

Delay on EPA Rule on Stationary Carbon Emitters

Wed, 24 Mar 2010 15:16:07 GMT

The EPA says it is moving forward on a new rule for vehicle emissions, but declined to provide a time line on the release of a so-called "tailoring rule" that will outline regulations for stationary emitters.

American industry will be watching closely how EPA decides to regulate greenhouse-gas emissions because any such rule will have a significant impact on new plant investments and company bottom lines. Many expected the tailoring rule to be released at the same time as the final vehicle-tailpipe regulation (around April 1). However, when asked if EPA would post the tailoring rule before April 1, Assistant Administrator Regina McCarthy said, "No. We're moving expeditiously on it." She added that EPA has no time line for publishing the rule, stating only that it will be "as soon as we can."

The EPA, however, will publish a memo before the tailpipe rule that will define when stationary sources would be regulated. EPA Administrator Lisa Jackson said last month that the Agency would likely view greenhouse gases officially as a regulated pollutant in 2011.

The EPA faced a massive backlash from industry in response to the draft tailoring rule it published last year. For instance, a number of state regulators opposed the rule or suggested modifications. A main concern raised was the level of emissions from a source that would trigger regulation. As a result, many state regulators have recommended raising the thresholds so they would cover fewer facilities initially.

A major industry concern is whether the EPA will fashion a rule that allows market-based programs (like the SO₂ allowance program) that could be used to lower the cost of compliance, in lieu of a strict mandate.

EPA Confirms Delay in Permit Requirement for Carbon Dioxide

Tue, 30 Mar 2010 11:14:15 GMT

EPA's decision is not surprising in light of recent signals (see our post of March 24). This move comes in the wake of intense pressure from state regulators, legislators and industry. All of these groups have asked EPA to delay the regulation of greenhouse gas emissions from large stationary sources, largely due to the expected costs. For instance, several state environmental agencies have said they lack funds and resources to handle the anticipated new permits, and businesses want more time to prepare for the new rules. Many in American industry are concerned about the huge costs associated with regulation of greenhouse gases, which EPA has been moving to regulate under the Clean Air Act.

EPA says the decision to phase in new rules is aimed in part at providing industry and state regulators enough time to put in place new technologies to reduce the CO₂ emissions that some scientists link to climate change.

“It gives large facilities the time they need to innovate, governments the time to prepare to cut greenhouse gases and it ensures that we don’t push this problem off to our children and grandchildren,” EPA Administrator Lisa Jackson said in a statement.

It is important to note that EPA will not "grandfather" permit applications after January 2, 2011 -- meaning any permits issued after that date will have to address greenhouse gas emissions even if your application was filed and determined to be complete before January 2. Additionally, where a state feels it has the state regulatory authority to regulate greenhouse gas emissions prior to January 2, 2011, EPA explicitly notes in the reconsideration that it will not preclude a state from doing so.

Click here to read the reconsideration.

No Punitive Damages for Plaintiffs in TVA Coal Ash Case

Wed, 31 Mar 2010 16:57:17 GMT

A federal district court has held that TVA cannot be held liable for punitive damages in a case filed by plaintiffs who live, own property, and work in the vicinity of the coal ash incident at TVA's Kingston Fossil Plant. However, the plaintiffs can proceed with certain negligence-related claims. The court's opinion hinged on TVA's status as a federal entity.

In Mays v. Tennessee Valley Authority, No. 3:09-CV-6 (E.D. Tenn. Mar. 26, 2010), the court found that as a federal entity, TVA enjoys sovereign immunity in some respects. The court reviewed applicable statutes and court cases to find that Congress had not waived TVA's immunity with respect to punitive damages. For similar reasons, the court held that plaintiffs could not challenge TVA's decisions with respect to response actions after the spill, nor were the plaintiffs entitled to a jury trial.

Further, according to the court, TVA may exercise discretion to make decisions to carry out governmental responsibilities. For purposes of this case, that included electricity generation, because federal statutes authorized TVA's electric utility functions. Accordingly, big-picture policy-level issues -- such as TVA's decision to manage coal ash wet instead of dry -- were beyond the plaintiffs' reach.

However, the court found that certain allegations of negligence in TVA's management and maintenance of ash facilities did not implicate the "exercise of policy judgment and consideration of public policy." Accordingly, the court allowed the plaintiffs to pursue those allegations with respect to matters leading up to the spill. According to one source, damage claims in the case total $165 million.

Also in this case, the plaintiffs have served notice that they wish to depose Tom Kilgore, TVA's President and Chief Executive Officer, personally.

Incentivizing the Growth of Solar Power: An Expensive Proposition

Thu, 01 Apr 2010 12:57:32 GMT

Germany, Spain, Italy, and France – the largest European markets for solar power – have cut, or are considering cutting, their government subsidies for solar power. Germany, which has the largest solar market, currently buys solar power from generators at 52¢ per kilowatt hour (kwh), which is nearly eight times the market price for other sources of electricity. This subsidy increased photovoltaic energy production from 32 million kwh in 2000 to 4.4 billion kwh in 2008 and amounted to a “gold rush” for solar generators. Germany spends more than $2 billion per year in subsidies to more than 500,000 residential solar energy producers, but has decided to cut the subsidy by fifteen percent in order to curtail government spending.

Those who promote solar power frequently argue that utilities should be required to purchase solar power at subsidized prices in order to stimulate the development of this renewable energy and point to European programs as examples. Perhaps the financial results of the European program should be considered also?

For more information on this topic, please click here.

South Wins Third Battle of Bull Run - TVA Victory in NSR Case

Thu, 01 Apr 2010 16:44:41 GMT

Yesterday, Judge Thomas Varlan, of the United States District Court for the Eastern District of Tennessee, ruled that two 1988 power plant maintenance projects at TVA’s Bull Run plant were routine replacements and thus did not trigger an obligation to obtain a New Source Review permit under the Clean Air Act. Sierra Club and the National Park Conservation Association sued TVA in 2001 alleging that replacing an economizer and a superheater in the Bull Run boiler without going through New Source Review (and the related PSD requirement to install the latest pollution control equipment) violated the Clean Air Act. The court examined the WEPCO factors (nature and extent, purpose, frequency and cost) in both the industry as a whole and at the plant in particular to determine whether the economizer and superheater projects were routine maintenance, repair and replacement (RMRR). In a very fact-based analysis, the court held that both projects were RMRR. Any appeal of the court's judgment in favor of TVA will be to the 6th Circuit.

To read the opinion click here.

This Week in Environmental History (April 5 - April 11)

Sun, 04 Apr 2010 17:22:57 GMT

On April 7, 1890, Marjory Stoneman Dougas was born in Minneapolis, Minnesota. After graduating as an honor student from Wellesley College, she took a job at the paper that would eventually become the Miami Herald, where her father, Frank Stoneman, was the publisher. A prolific writer, she rose through the paper's ranks, earning a reputation as a crusading voice for racial justice, women's rights, and conservation.

As the years passed, Douglas increasingly became associated with one particular cause: the protection of Florida's Everglades. In 1947 -- the same year Everglades National Park was established -- she authored the book The Everglades: The River of Grass. She began the book with the words: "There are no other Everglades in the world. They are, they have always been, one of the unique regions of the earth; remote, never wholly known. Nothing anywhere else is like them . . ."

Regardless of what side one found himself (or herself) on the issue of the proper hydrologic management of the Everglades, few would doubt that River of Grass succeeded in drawing national attention to the issue. In time, the book earned a place in the pantheon of American environmental literature. Meanwhile, in 1970, Douglas founded Friends of the Everglades to lend an organizational, legal, and financial voice to her work. In 1993, her efforts earned her the Presidential Medal of Freedom from President Bill Clinton. Douglas died in 1998. Fittingly, her ashes were scattered in her beloved Everglades. -- Posted by Jim Noles

Fish and Wildlife Service to Conduct Five Year Status Review of 10 Southeastern Species

Thu, 08 Apr 2010 09:06:47 GMT

The FWS is conducting a 5-year status review for the following endangered species: Mississippi sandhill crane (Grus canadensis pulla), Alabama cavefish (Speoplatyrhinus poulsoni), Alabama lampmussel (Lampsilis virescens), pale lilliput (Toxolasma cylindrellus), pondberry (Lindera melissifolia), green pitcher-plant (Sarracenia oreophila), and Louisiana quillwort (Isoetes louisianensis). This notice also announces our active review of three species that are currently listed as threatened: gopher tortoise (Gopherus polyphemus), yellow-blotched map turtle (Graptemys flavimaculata), and Mohr’s Barbara button (Marshalli mohrii).

In its 5-year status review, FWS considers the following information to determine whether to remove the species from the list or to reclassify the species:

A. Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;

B. Habitat conditions, including but not limited to amount, distribution, and suitability;

C. Conservation measures that have been implemented to benefit the species;

D. Threat status and trends (see five factors under heading “How do we determine whether a species is endangered or threatened?”); and

E. Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.

Click here to read the Federal Register notice and comments are due on June 8, 2010.

U.S. Supreme Court Justice Stevens Will Retire

Fri, 09 Apr 2010 10:27:26 GMT

Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, has announced he will retire, giving President Barack Obama a second Supreme Court seat to fill.

According to the AP, Stevens said today he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”

There has been speculation for months about this announcement, which comes 11 days before his 90th birthday. Justice Stevens began signaling a possible retirement last summer when he hired only one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.

Leading candidates to replace Stevens so far: Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59.

Fifth Circuit Holds Rail Line Is Less Disruptive To Environment Than Highway

Wed, 14 Apr 2010 21:47:53 GMT

Last week, the U.S. Court of Appeals for the Fifth Circuit dismissed an environmental group's challenge to a rail line for a Texas limestone quarry, holding the rail line would cause less harm to endangered species than a highway.

The Medina County Environmental Action Association sought review of a decision by the Surface Transportation Board (STB) granting an exemption under 49 U.S.C. § 10502 that allowed the Southwest Gulf Railroad Co. to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas. At issue was whether the STB and the U.S. Fish and Wildlife Service (FWS) complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was “not likely to jeopardize the continued existence of any endangered species” before approving the exemption.

The environmental group argued that the agencies should have considered the quarry and rail line as interrelated and should have provided a cumulative analysis of the phased development. They were particularly concerned about the endangered golden-cheeked warbler and invertebrates living in karst limestone formations.

The quarry owner, Vulcan Materials, had looked voluntarily for warblers starting in 2000, finding a single warbler calling near the site in 2003. It also tracked the presence of karst cave insects. FWS concluded that little suitable warbler habitat remained, since the area had previously been cleared for agriculture. Also, allthough some karst features were in the project area, none of the cave insects was discovered there.

The court denied the environmental group's request for review, finding that quarry development could occur regardless of the railway, so the two were not interrelated. Because full development through all phases of the project was not certain, Chief Judge Carolyn Dineen King wrote, no cumulative analysis was required. The court observed, "The STB has no authority to stop development of the quarry, which the evidence shows could and would be developed regardless of whether the rail line were built. The STB had two choices: Grant the exemption and allow the rail line—the environmentally preferable alternative—to go forward, or deny the exemption, in which case quarry development would progress, serviced by a more environmentally disruptive fleet of trucks. We cannot say that the STB abused its discretion in choosing the former."

The court was also persuaded by the fact that Vulcan provided adequate mitigation measures, including a planned buffer zone and a promise that it would not clear land during warbler breeding season.

Attorneys in the Balch & Bingham Environmental Group have extensive experience representing quarry owners and parties in lawsuits like this one, where the ESA is invoked as a challenge to a proposed development or project. As illustrated by Vulcan's actions in this case, engaging in proactive investigation and management of potential environmental issues on the front end of a project can be very significant in a later environmental challenge.

Click here to read the decision.

House Committee Approves New Cybersecurity Authority for FERC

Fri, 16 Apr 2010 14:06:32 GMT

On April 15, 2010, the House Committee on Energy and Commerce unanimously approved the Grid Reliability and Infrastructure Defense (GRID) Act. If enacted into law, the legislation would grant new powers to the Federal Energy Regulatory Commission (FERC) to address electric reliability threats and vulnerabilities.

The bill would add a new Section 215A to the Federal Power Act. Section 215A would authorize FERC to issue emergency orders in response to threats such as an attack by an electromagnetic pulse, a cyber attack, or a physical attack likely to cause significant adverse effects on electric reliability. FERC would also be authorized to promulgate rules to address vulnerabilities to a cyber attack or electromagnetic pulse.

The bill would create a new class of "protected information" relating to grid threats and vulnerabilities and certain other related matters. Protected information would be exempt from disclosure under the Freedom of Information Act (FOIA). The determination of what constitutes protected information would reside exclusively with FERC. FERC would be required to construe the FOIA exemption narrowly and withhold from disclosure "only the minimal amount of information necessary" to protect reliability.

FERC and regulated entities do not always agree on what information ought to be protected. Information relating to cyber threats and vulnerabilities is likely to be sensitive. The knowledge that FERC must err on the side of disclosure provides an incentive to the regulated community to submit to FERC only the minimum information legally necessary.

A staff memorandum posted to the Committee's web site provides additional background and explanation of the GRID Act's provisions.

The legislation passed the committee with unanimous and bipartisan support. Forty-nine committee members, including majorities of both parties, voted in favor. The North American Electric Reliability Corporation (NERC) also supports the bill. The next step is for the Committee to send the bill and a committee report to the full House of Representatives for further consideration.

We'll continue to monitor the progress of cybersecurity legislation and post more information here as it becomes available.

Duke and Georgia Tech Release Report on Potential Cost Savings in the South from Energy Efficiency Policies

Mon, 19 Apr 2010 10:54:26 GMT

The scope of the analysis is limited to energy-efficiency improvements in residential, commercial building and industry sectors (RCI), and concludes that the commercial building sector has the greatest potential for percent energy savings and reduced energy consumption, while the industrial sector has the largest absolute energy saving. Overall, the study concluded that the implementation of these policies could: (1) prevent energy consumption in the RCI sectors from growing over the next 20 year; (2) prevent the need for as many power plants (report states that energy efficiency would help retire 25 gigawatts of older power plants and eliminate the need for 100 new power plants that would provide 50 gigawatts); investments in energy efficiency would generate jobs and cut utility bills (a typical household would save $26 on monthly bills and up to 380,000 new jobs would be created in sectors vital to energy efficiency improvements such as construction and manufacturing); and (4) significant water savings would be realized (8.6 billion gallons of freshwater that would otherwise be used for cooling purposes at conventional and thermoelectric power plants in the South could be conserved by 2020 by cutting energy demand growth).

The report’s nine energy-efficiency policies include tighter commercial appliance standards and retrofits in the commercial building industry; retrofits, tighter building codes, appliances, and expanded weatherization assistance in the residential building sector; and process improvement, plant utility upgrades and combined heat and power in the industry sector. Of these policies, the commercial appliance standards are estimated to have the greatest energy savings potential in both 2020 and 2030, and commercial retrofit incentives account for additional cost-effective energy savings potential. Process improvements in the industry sector could save significant quantities of natural gas and other fossil fuels, and the report states that savings are also possible through policies that promote plant utility upgrades and incentives for combined heat and power. However, although EPA encourages certain energy efficiency projects, such projects can also trigger Clean Air Act permitting requirements. Industries should therefore be cautious when considering these policies.

The report concedes that the residential appliance and combined heat and power incentives have a cost/benefit less than one and are not cost-effective. In addition, the commitment to energy efficiency would have a small impact on the level of economic activity in the South--an increase of $1.23 billion in 2020 relative to the South's $4.7 trillion economy in 2007. Several of these energy saving policies are similar to the initiatives included in the House-passed climate bill, an energy bill and several other pieces of legislation passed by the Senate Energy and Natural Resources Committee, and the "Home Star" residential retrofit rebate program introduced by the Obama administration. Click here to view the report.

EPA Releases Report Showing Impacts of Climate Change in the US

Wed, 28 Apr 2010 08:04:35 GMT

The report presents 24 indicators, each describing trends in some way related to the causes and effects of climate change. These indicators were further broken down into five chapters and include an analysis of a measure of greenhouse gas emissions, weather and climate, oceans, snow and life, and society and ecosystems.

EPA concludes that greenhouse gas emissions caused by human activities in the United States increased by 14 percent from 1990 to 2008 and worldwide, greenhouse gas emissions emissions from human activities increased by 26 percent from 1990 to 2005.

EPA also claims that temperatures across the United States have risen, the United States has had more heat waves and droughts, while at the same time indicating the United States has had increased precipitation. In addition, EPA claims that the intensity of tropical storms and hurricanes has risen over the past 20 years due to the increase in ocean temperatures.

It will be interesting to see how and if this report will be used in the courts with respect to the pending climate change litigation.

To read the report, click here.

Oil Spill in the Gulf--Agencies Establish Unified Command

Thu, 29 Apr 2010 10:33:23 GMT

Federal agencies involved in the response to the oil rig explosion and spill in the Gulf of Mexico are operating under a unified command and have established a central website for information and coordination: www.deepwaterhorizonresponse.com

National Contigency Plan in Action in Gulf Response

Thu, 29 Apr 2010 15:35:49 GMT

The government response to the Horizon Deepwater oil spill in the Gulf is taking place under the National Oil and Hazardous Substances Pollution Contingency Plan or "NCP." Under the NCP, if the spill is classified as a spill of "national significance," "senior federal officials direct nationally-coordinated response efforts." That is taking place now. Details on the NCP can be found at http://www.epa.gov/emergencies/content/lawsregs/ncpover.htm.

Will Fifth Circuit Move Forward with En Banc Rehearing in Comer Global Warming Case?

Sat, 01 May 2010 10:55:33 GMT

Yesterday, the Fifth Circuit issued a notice stating as follows:

The parties are hereby notified that since the en banc court was constituted, new circumstances have arisen that make it necessary for another judge to recuse, leaving only eight members of the court able to participate in the case. Consequently, this en banc court has lost its quorum, precluding the court from acting on the merits of the case. Accordingly, arguments scheduled for May 24, 2010, are canceled. Further notification to the parties will follow.

The Comer case was originally filed in 2005 following Hurricane Katrina on behalf of all Mississippians suffering injury and damage as a result of that devastating storm. The suit was brought against oil, coal, utility, and chemical company defendants. Specifically, the plaintiffs claim that: (1) the defendants burn or supply coal that releases or emits CO₂; (2) the CO₂ has contributed to global warming; (3) global warming caused Hurricane Katrina to form and intensify; and (4) Hurricane Katrina caused damage to the plaintiffs’ lives and properties.

On August 30, 2007, the U.S. District Court for the Southern District of Mississippi determined that the plaintiffs lacked standing to sue because they could not show how any of defendants’ actions had caused damage to any plaintiff. The district court also held that the plaintiffs’ claims raised "political questions" that the Court lacked jurisdiction to hear.

Last October, the United States Court of Appeals for the Fifth Circuit disagreed and reversed the decision (in part), remanding the case to the trial court. The Fifth Circuit opinion holds that the Plaintiffs have standing to assert their nuisance, trespass and negligence claims and that none of the claims present nonjusticiable political questions. Comer v. Murphy Oil, 585 F.3d 855 (5th Cir. 2009).

The defendants filed a petition for rehearing en banc, seeking rehearing based on the panel’s application of Baker v. Carr, 369 U.S. 186 (1962), the landmark political question case, and based on the panel’s ruling on standing. On February 26, 2010 the Fifth Circuit granted the petition for rehearing en banc. 2010 WL 685796 (5th Cir. Feb. 26, 2010).

The Court likely will provide more guidance soon about whether the Fifth Circuit will be able to constitute another quorum and whether en banc rehearing will go forward. Stay tuned.

This Week in Environmental History (May 3-May 9)

Sun, 02 May 2010 20:28:40 GMT

Thirteen years ago this week, on May 6, 1997, the National Marine Fisheries Service (NMFS) listed the Southern Oregon/Northern California Coast "evolutionary significant unit" (ESU) of the coho salmon as threatened. Today, there are approximately 1,220 species of animal around the world listed as threatened or endangered, ranging from abalone to zebra.

At the time NMFS listed the SONCC ESU of salmon as threatened, there were only an estimated 10,000 naturally spawning adults in that particular ESU, as compared to statistics from the 1940s that put the salmon's spawning population as high at 400,000.

In recent years, however, incredible numbers of spawning salmon provided argumentative fodder for both proponents and opponents of the salmon's continued listing. According to the a Wall Street Journal article from earlier this year, more than 680,000 Coho salmon returned to Oregon in 2009, double the number in 2007. Creeks were reportedly so choked with salmon that "you could literally walk across on the backs of Coho," said Grant McOmie, outdoors correspondent for a television news team in Portland. Scientists attributed the surge in numbers to several factors, to include cooler ocean currents that, in turn, contributed to larger plankton -- a major food source for the lucky salmon. -- Posted by Jim Noles

Gulf State AGs Ask President to Coordinate on Spill Enforcement

Thu, 06 May 2010 14:31:24 GMT

On May 6, 2010, the Attorneys General (AGs) from Alabama, Florida, Louisiana, Mississippi, and Texas asked President Obama for assistance in establishing a state-federal working group with the purpose of coordinating any information-gathering. This state-federal working group would also serve to foster communication in preparation for any damage assessment initiatives or enforcement or litigation actions that may be necessary in the future.

While acknowledging BP's public commitment to pay for all claims arising from this environmental and economic disaster, the AGs also recognize that litigation and enforcement efforts may be required in the future. Thus, the AGs asked BP and other involved companies to preserve all relevant documents, aka a "litigation hold."

The ultimate goal expressed by the AGs is for the various state and federal agencies to work together and avoid any unnecessary duplication.

Click here to read the letter

This Week in Environmental History (May 10 - 16)

Sun, 09 May 2010 19:44:47 GMT

On May 10, 1876, the Centennial Exposition opened in Philadelphia, Pennsylvania. Among the new products heralded at the fair were Alexander Graham Bell's telephone, the Remington typewriter, Heinz ketchup, Hires Root Beer, and, from Japan, a vine called kudzu (Pueraria lobata).

At the fair, kudzu was touted as a fast-growing vine capable of not only quickly providing shade in backyard arbors but also as an effective ground cover to combat soil erosion. In addition, kudzu could reportedly provide forage for livestock and helps to increase nitrogen content in soils.

By 1935, the Soil Conservation Service was encouraging farmers in the southeastern United States to plant kudzu to battle the region's rampant soil erosion during the Great Depression. In Alabama alone, some 83% of the state's agricultural lands had been damaged by what the Soil Conservation Service called "accelerated erosion."

In response, the New Deal's Civilian Conversation Corps actively planted kudzu throughout the South as one of its many public works projects. In Alabama, this work was the responsibility of some 2,000 CCC enrollees in 11 different camps.

By 1953, however, it was clear that the fast-growing kudzu (capable of growing sixty feet annually!) had outstripped its usefulness. In 1953, the U.S. Department of Agriculture declared kudzu a pest weed. Meanwhile, kudzu has spread through the South at a rate of 150,000 acres annually. As an invasive species, kudzu and its unchecked spread continues to cause ecologists understandable concern, even as other scientists explore uses for the weed ranging from alternative fuels to treatments for alcoholism. -- Posted by Jim Noles

This Week in Environmental History (May 17 - May 23)

Mon, 17 May 2010 08:02:12 GMT

Thirty years ago this week, at 8:32 Sunday morning, May 18, 1980, Mount St. Helens erupted. The volcano's eruption in southern Washington's Cascades Range claimed an estimated 57 lives and shaved over 1,000 feet off the mountain's height.

Three decades later, Mount St. Helen's 9-hour eruption ranks as the deadliest and most economically destructive volcanic eruption in the United States' history. In addition to the loss of human life, nearly 230 square miles of forest were blown down or buried beneath volcanic deposits. Losses among wildlife -- ranging from elk to trout -- were catastrophic in such areas and in associated waters. The Washington State Department of Game estimated that nearly 7,000 big game animals (deer, elk, and bear) perished in the area most affected by the eruption, as well as all birds and most small mammals. In addition, the Washington Department of Fisheries estimated that 12 million Chinook and Coho salmon fingerlings were killed when hatcheries were destroyed.

At the time of the eruption, the summit of Mount St. Helens was owned by Burlington Northern Railroad. In 1982, however, President Ronald Reagan and Congress created the 110,000-acre National Volcanic Monument for research, recreation, and education. In addition, the eruption led the United States Geological Survey to establish the David A. Johnston Cascades Volcano Observatory (CVO) in Vancouver, Washington, named in memory of the Survey volcanologist killed 2 years earlier during the eruption. -- Posted by Jim Noles

Response to Transocean's Petition to Limit Liability

Tue, 18 May 2010 12:43:00 GMT

On May 13, Transocean filed a complaint and petition for exoneration from or limitation of liability in the district court for the Southern District of Texas. Petition.pdf Transocean denied all negligence claims and asked that its liability be limited to $27 million, or the current value of the Deepwater Horizon vessel, pursuant to the Limitation of Liability Act of 1851. The same day, the Court issued an order enjoining any and all other suits relating to the oil spill until the hearing. Parties are beginning to challenge this filing and Court order. On May 14, Cajun Maid, a claimant in the Southern District of Mississippi, filed a motion to make Transocean's filing null and void and of no effect to its case. Yesterday, a plaintiff in related litigation filed a motion in the Southern District of Texas to modify the May 13 order, requesting that the order exclude claims made under the OPA 90, and that it not stay litigation elsewhere. Motion.pdf.

EPA Issues Directive Requiring BP to Use Less Toxic Dispersants

Thu, 20 May 2010 17:17:56 GMT

Although the dispersant BP has been using is on EPA's approved list, BP is using it in unprecedented volumes and underwater at the source of the leak, a procedure which the Coast Guard approved last Saturday, but which has never been done before. The long-term effects of this dispersant remain unknown. One of the chief agents being used, Corexit 9500, is identified as a "moderate" human health hazard that can cause eye, skin or respiratory irritation with prolonged exposure. Because of the unprecedented volumes of dispersants being used and because little is known about the use of dispersants underwater, EPA issued the directive to ensure that BP is using the least toxic alternative. This move also comes amid a growing sense of frustration with the company's failure to stop the spill.

The directive requires BP to identify an alternative within 24 hours and to begin using the less toxic dispersant within 72 hours of submitting its choice. If BP is unable to identify an alternative, BP must provide the Coast Guard and EPA with a detailed description of the alternative dispersants investigated and the reason why those products do not meet the required standards. BP also must continue to constantly monitor the dispersants so that EPA scientists may determine the dispersant’s effectiveness and impact on the environment, water and air quality, and human health. A copy of EPA's directive can be found here.

This Week in Environmental History (May 31 - June 6)

Mon, 31 May 2010 08:04:15 GMT

On May 31, 1977, the Alyeska Pipeline Service Company completed construction of the Trans Alaska Pipeline after slightly over two years of construction. Designed and constructed to move oil from the North Slope of Alaska to the northern most ice-free port in Valdez, Alaska, the four-foot diameter pipeline runs 800 miles, crosses three mountain ranges and over 800 rivers and streams. The pipeline cost $8 billion in 1977, which made it the largest privately funded construction project at that time.

The first oil moved through the pipeline on June 20, 1977; since then, the pipeline has transported over 15 billion barrels to the Valdez terminal, where some 20,000 oil tankers have been loaded over the course of the pipeline's three decades of operations. -- Posted by Jim Noles

United States Files Motion to Lift Stay in Transocean Limitation of Liability Proceeding

Thu, 03 Jun 2010 16:05:25 GMT

Specifically, the United States requested that the court lift or modify its injunction to clarify that, with respect to the Deepwater Horizon incident, the Limitation of Liability Act and Rule F “shall neither apply to nor affect the following claims, actions, causes of action, or proceedings”:

(1) any claims brought under the Oil Pollution Act of 1990, whether direct or indirect;

(2) any claims brought by the federal, state or municipal governments or any other civil and administrative penalties;

(3) any claims brought pursuant to the Park System Resource Protection Act, the National Marine Sanctuaries Act, the Clean Water Act, the Rivers and Harbors Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.

The United States’ memorandum accuses Transocean of failing to advise the court that the Limitation of Liability Act may not enjoin environmental claims brought by the U.S. government, states, or by private citizens under federal and state environmental laws. In addition, the United States cites to United States v. CF Industries, Inc., 542 F. Supp. 952, 956-57 (D. Minn. 1982), to show that Transocean’s attempt to extend the liability limitation to OPA claims is contrary to established law. In this case, defendant filed a petition under the Limitation Act, and, in response, the United States instituted an independent proceeding in which it asserted a civil penalty claim under the Clean Water Act (CWA). The limitation petitioner argued that the United States had improperly filed suit in a separate proceeding from the limitation action, and that the injunction issued by the limitation court applied to all proceedings, including the United States’ civil penalty claim. The court held, however, that because the civil penalty assessment under the CWA was not subject to limitation under the Limitation Act, the limitation court had no jurisdiction whatsoever over the United States’ civil penalty claim. Because the court lacked jurisdiction, the injunction was meaningless. The United States notes however, that in this case, out of respect for the Court, it has filed this motion rather than proceeding independently as in CF Industries.

Click below to view the motion and memorandum in support thereof:

100601 Motion by U.S. to lift stay on OPA Claims.pdf

100601 Memo in support of U.S. Motion to lift stay for OPA 90 claims.pdf

This Week in Environmental History (June 7 - 13)

Sun, 06 Jun 2010 11:29:11 GMT

Edward O. Wilson is a noted American biologist, ecologist, researcher, theorist, naturalist, and author. Born in Birmingham, Alabama, on June 10, 1929, in Birmingham, Alabama, Wilson spent his early years in coastal Alabama and Florida, where he began to develop an abiding interest in the natural world. Although he later lived in Washington, D.C., he returned to Alabama to earn a B.S. and M.S. in biology at the University of Alabama. He subsequently earned a Ph.D from Harvard University in 1955. The following year, Wilson joined the faculty, where he is now Pellegrino University Professor Emeritus and Honorary Curator in Entomology.

Wilson’s published works (both solo and collaborative efforts) include The Theory of Island Biogeography (1967), The Insect Societies (1971), Sociobiology: The New Synthesis (1975), On Human Nature (1978), Genes, Mind, and Culture (1981), Biophilia (1984), The Ants (1990), Diversity of Life (1992), Consilience: The Unity of Knowledge (1998), and The Future of Life (2002). With his co-authors, Wilson earned the Pulitzer Prize for his works On Human Nature and The Ants. It is no overstatement to say that Wilson played a leading role in introducing such terms and concepts as “biodiversity” and “gene-culture coevolution” to the language.

In 1995, Time named Wilson one of the 25 most influential Americans, and in 2000 he was named one of the century’s 100 leading environmentalists by both Time and Audubon Magazine. In 2005, Foreign Policy named him one of the world’s 100 leading intellectuals. -- Posted by Jim Noles

EPA and Texas Feud Over Texas's Flexible Air Permit Program

Wed, 16 Jun 2010 15:13:29 GMT

EPA is encouraging Texas flexible air permit holders to participate in its voluntary audit program. Should a permit holder decide to participate it will require the flexible permit holders to hire an independent third-party auditor, who will in turn determine all the federally applicable unit-specific limitations and requirements and evaluate the federal Clean Air Act compliance status of emission units covered under the facility’s Texas flexible permit. The auditor would identify for each emission unit regulated under the source’s flexible permit all currently federally applicable: (1) emission limitations/standards; (2) operational limitations/special conditions; (3) monitoring, reporting and recordkeeping (“MRR”) requirements; and (4) specific references for these requirements (e.g., permit number, specific Maximum Achievable Control Technology, State Implementation Plan citation). Furthermore, to the extent that it is determined that a source is not in compliance with NSR with respect to a particular emission unit, the auditor will include an evaluation of the current (2010) Lowest Achievable Emissions Rate or Best Available Control Technology (hereinafter collectively referred to as “LAER/BACT”) for that emissions unit and will recommend an applicable LAER/BACT limit for that emissions unit.

The audit participant will have a chance to comment on the results of the audit and to propose to EPA alternative emission unit requirements. In addition, the emission unit requirements agreed upon during the post-audit negotiation with EPA would be memorialized in a Consent Agreement and Final Order (“CAFO”) with EPA. Lastly, concurrent with the audit process, the audit participant will also agree to work with its surrounding community to develop community project(s) focused on improving, protecting, mitigating, and/or reducing community risks to public health or the environment that could have been caused by potential violations by the audit participant.

Click here and here to read the notice and Flexible Air Permit Agreement.

EPA May List Areas in Alabama, Florida, and Tennessee as Nonattainment for Lead

Thu, 17 Jun 2010 13:22:34 GMT

On June 14, 2010, EPA sent letters to twelve states notifying them that areas within their borders are being considered for designation as nonattainment with the 2008 National Ambient Air Quality Standards (NAAQS) for lead. EPA’s preliminary determinations are in response to a final rule issued by EPA in 2008 that revised the NAAQS for lead from a level of 1.5 micrograms per cubic meter (ug/m3) to a level of 0.15 ug/m3. In response to the 2008 lead standard and Clean Air Act (CAA) requirements, states were required to submit designation recommendations to the EPA Administrator by October 15, 2009.

Notably, Alabama, Florida, and Tennessee were among the twelve states that received letters on June 14, 2010. In Alabama, EPA proposed “to modify Alabama’s designation and boundary for the Troy area from ‘unclassifiable’ to ‘nonattainment.’” In Florida, EPA proposed “to modify Florida’s designation for the Tampa area from ‘unclassifiable’ to ‘nonattainment.’” And in Tennessee, EPA proposed “to adopt Tennessee’s recommended nonattainment designation and boundary for the Bristol area.”

EPA plans to issue final designations by October 15, 2010 for nonattainment areas violating the 2008 NAAQS for lead. Accordingly, states and the general public can submit additional information to EPA by August 16, 2010 in response to EPA’s preliminary decisions.

Click below to read the recommendations sent to EPA from Alabama, Florida, and Tennessee.

Click below to read the responses and technical support documents sent from EPA to Alabama, Florida, and Tennessee.

This Week in Environmental History (June 21-27)

Mon, 21 Jun 2010 21:45:46 GMT

On June 22, 1969, sparks from a passing train ignited an oil and debris slick on the Cuyahoga River in Cleveland, Ohio. Although the fire lasted less than an hour, and was not even the largest and most damaging of the fires that had burned the Cuyahoga through Cleveland’s industrial history, the June 22, 1969, proved to be the conflagration that captured America’s attention. In an August article in Time, the magazine described the Cuyahoga: “Some river! Chocolate-brown, oily, bubbling with subsurface gases, it oozes rather than flows.”

Today, many credit the river’s ignition with helping to spark (no pun intended) the nascent environmental movement in the United States; it likely prompted the creation of the Environmental Protection Agency and the passage of the federal Clean Water Act. The latter, in turn, is credited with a reversal of fortune for much of the Cuyahoga’s environmental health. In areas of the river where once not even pollution-tolerant “sludge worms” could survive, fish and invertebrate life is, today, reportedly thriving. – Posted by Jim Noles

Judge Rules Against Obama's Deepwater Drilling Moratorium

Tue, 22 Jun 2010 15:49:29 GMT

Today a Federal Judge determined that the Department of Interior acted "arbitrarily" when it issued a six-month moratorium on all pending, current or approved drilling plans for new deepwater wells in the Gulf of Mexico and Pacific Ocean. President Obama indicates an immediate appeal is planned.

Click here to read the order.

MCoal's NPDES Permit Affirmed by AEMC

Fri, 25 Jun 2010 12:52:50 GMT

Today, the Alabama Environmental Management Commission (“AEMC”) unanimously affirmed the NPDES permit issued to MCoal Corporation for its Rosa Mine located in Blount County. The mine produces high quality metallurgical coal used in carbon filtration. The fight over the permit has been intense. The Southern Environmental Law Center (“SELC”), representing Black Warrior Riverkeeper, Inc. and Friends of the Locust Fork, Inc., contested many of the standards and limitations contained in MCoal’s NPDES permit, as well as ADEM’s method for reviewing the adequacy of MCoal’s Pollution Abatement and Prevention Plan. MCoal is represented by Balch & Bingham LLP. A week-long evidentiary hearing was held in February of this year before a Hearing Officer assigned by the AEMC. Following the hearing, the Hearing Officer issued a written recommendation in favor of MCoal on all aspects of the NPDES permit issued to MCoal. Today, the AEMC unanimously adopted that recommendation. The case is styled Black Warrior Riverkeeper, Inc. v. ADEM, Docket No. 10-04. Earlier this year, SELC announced it was opening a new office in Birmingham, its first office in Alabama.

Click here to read the Hearing Officer's recommendation.

This Week in Environmental History (June 28 - July 4)

Sun, 27 Jun 2010 14:33:45 GMT

On June 29, 1956, President Dwight D. Eisenhower signed Public Law 84-627, the National Interstate and Defense Highways Act, into law. The new law appropriated the $25 billion believed necessary for the United States to embark on the creation of a modern interstate highway system.

President Eisenhower’s advocacy for the interstate system was understandable. In 1919, he had accompanied the Army’s so-called Transcontinental Motor Convoy across the United States in an experiment in military mobility; it took the unit two months to traverse America. Later, Eisenhower’s observations of the German autobahn system during World War II further convinced him of the military and economic value of a modern national road network. Accordingly, he made the revitalization of the nation’s highways and the creation of an interstate highway system a stated goal of his first term in office. Eisenhower reiterated this goal in his 1956 State of the Union address.

“Legislation to provide a modern, interstate highway system is even more urgent this year than last,” the President declared, “for 12 months have now passed in which we have fallen further behind in road construction needed for the personal safety, the general prosperity, the national security of the American people. During the year, the number of motor vehicles has increased from 58 to 61 million. During the past year over 38,000 persons lost their lives in highway accidents, while the fearful toll of injuries and property damage has gone on unabated.”

“If we are ever to solve our mounting traffic problem,” Eisenhower warned, “the whole interstate system must be authorized as one project, to be completed approximately within the specified time. Only in this way can industry efficiently gear itself to the job ahead. Only in this way can the required planning and engineering be accomplished without the confusion and waste unavoidable in a piecemeal approach.”

“Furthermore, as I pointed out last year,” Eisenhower concluded, “the pressing nature of this problem must not lead us to solutions outside the bounds of sound fiscal management. As in the case of other pressing problems, there must be an adequate plan of financing. To continue the drastically needed improvement in other national highway systems, I recommend the continuation of the Federal Aid Highway Program.”

Responding to Eisenhower’s urging, Congress passed the National Interstate and Defense Highways Act, which the president signed into law while recuperating in Walter Reed Hospital from an illness.

Today, the interstate highway system is approximately 47,000 miles long. A 1991 estimate of the total cost of the system totaled $128.9 billion, far above the original estimate (although, admittedly, original plans for the system envisioned a 37,700 of interstate highways.

Despite increasing congestion, few would doubt that the interstate highways system has met Eisenhower’s goals. However, the direct environmental impact of constructing 47,000 miles of roads has provided a fertile basis for numerous National Environmental Policy Act, National Historic Preservation Act, and Endangered Species Act cases, while other critics have decried the current system’s facilitation of urban sprawl and undercutting of mass transit alternatives. – Posted by Jim Noles

EPA Region 4 Closes Complaints on Five Environmental Justice Investigations

Mon, 28 Jun 2010 07:41:12 GMT

On October 27, 2009, EPA Region IV received 16 allegations involving environmental justice issues. Upon further investigation, EPA determined that five of the allegations warranted further investigation. These five allegations involved coal ash disposal at the Arrowhead Landfill in Perry County, Alabama; chemical contamination in McIntosh, Alabama, associated with an Olin Corporation facility; chemical contamination of a church in Columbus, Mississippi, by creosote from Kerr-McGee Corporation; groundwater contamination associated with a landfill in Dickson, Tennessee; and groundwater contamination near a former precision-weapons manufacturing facility in Tallavest, Florida. On June 14, 2010, EPA's Office of Inspector General released a special report regarding those five allegations, reporting that all five complaints had been closed with no further action from EPA.

Click here to see the report or contact Jim Noles at 205-226-8767 for more information.

Senate Panel Removes OPA 90’s Liability Cap for Offshore Facilities

Thu, 01 Jul 2010 14:51:42 GMT

The bill, titled the “Big Oil Bailout Prevention Liability Act of 2010” (S. 3305), was introduced by Senator Robert Menendez (D-N.J.) and aims to eliminate the $75 million liability cap on damage claims related to a discharge from an offshore facility found in Section 1004(a)(3) of the Oil Pollution Act of 1990 (“OPA 90”). 33 U.S.C. § 2704(a)(3). The bill passed the Committee by voice vote with an amendment offered by Senator Boxer, chair of the Committee, to eliminate the cap on liability completely, as well as amendments to improve oil spill contingency plans and the claims process. Initially, Democrats were pushing to replace the $75 million cap with a $10 billion cap. However, with the ongoing spill in Gulf, Democrats pursued a more ambitious approach and passed an amended version of Senator Menendez’s bill that removes the limit on liability applicable to offshore facilities. Republicans raised concerns that eliminating the cap could make it harder for oil firms to secure insurance and could put small and independent oil producers out of business. The Committee shot down an amendment by Oklahoma Senator Jim Inhofe that proposed to allow the President to establish liability caps for each offshore facility based on several factors, including water depth, estimated well pressure, the operator’s safety record and other risk factors. It is unclear when the bill may be voted on by the full Senate or the U.S. House of Representatives. Despite the Committee’s approval, the bill’s fate in the full Senate is uncertain.

This Week in Environmental History (July 5 - 11)

Tue, 06 Jul 2010 12:55:56 GMT

On the evening of July 10, 1985, agents with the French intelligence service Direction Générale de la Sécurité Extérieure bombed the Greenpeace ship Rainbow Warrior.

At the time, the Rainbow Warrior was docked in Auckland, New Zealand. Greenpeace had dispatched the ship to New Zealand to lead a protest flotilla against the French government’s underground nuclear weapons tests on the Polynesian atoll of Moruroa. Determined to prevent disruption of the weapons tests, the French government sent a team of DGSE agents to “neutralize” the Rainbow Warrior.

Shortly before midnight on July 10, 1985, the first of two limpet mines attached to the hull of the Rainbow Warrior exploded. Caught below decks when the second mine detonated, Fernando Pereira, a photographer with the ship’s crew, drowned as the ship quickly sank. New Zealand police arrested a pair of the DGSE agents, posing as a pair of married Swiss tourists, shortly thereafter. Not surprisingly, an international crisis ensued.

In the wake of the bombing, France temporarily halted its nuclear testing program, although it ultimately resumed. The last nuclear test on Moruroa took place in 1996. Meanwhile, international negotiations led to the two arrested agents spending short terms interned in a French military facility, the resignation of France’s Defense Minister, and the French government’s payment of several million dollars in reparations to New Zealand, Greenpeace, and Pereira’s family.

The bombing of the Rainbow Warrior helped further solidify New Zealand’s opposition to nuclear testing. It also cast a pall over New Zealand’s relations with France and the United States (which New Zealand believed had failed to adequately condemn its Cold War ally’s France’s covert operation) that still lingers today.

As for the Rainbow Warrior, it was raised as part of New Zealand’s investigation of the bombing. Two and a half years later, it was scuttled in the waters off New Zealand’s Cavalli Islands to serve as a dive wreck and fish sanctuary.

EPA Publishes its Transport Rule, aka the New CAIR

Tue, 06 Jul 2010 16:05:18 GMT

This proposed rule effects 31 states and the District of Columbia. The rule will require annual SO2 and NOX emissions reductions starting as early as 2012. By reducing the emissions from the upwind states, EPA anticipates that the proposal would help downwind states attain air quality standards, specifically the 24-hour PM2.5 standards established in 2006, the 1997 annual PM 2.5 standards, and the 1997 ground-level ozone standard.

This proposal replaces the Clean Air Interstate Rule that was struck down by the D.C. Circuit.

Click here to read EPA's proposed 1361 page Transport Rule.

4th Circuit Slaps Down North Carolina in TVA Nuisance Case

Mon, 26 Jul 2010 17:05:34 GMT

On July 26, 2010, the Fourth Circuit ruled in State of North Carolina v. Tennessee Valley Authority, that public nuisance standards could not be used to circumvent the Clean Air Act (“CAA”) in order to impose emission restrictions on TVA. The State of North Carolina initially brought a public nuisance suit against TVA in 2006 alleging that air emissions from TVA’s coal-fired electric generating units in Tennessee, Alabama and Kentucky were a public nuisance. In 2009, the district court granted an injunction to North Carolina and required TVA to install extensive pollution control technology on four of the TVA plants closest to the North Carolina border.

The Fourth Circuit reversed, based primarily on concerns that allowing public nuisance challenges to control energy emissions would unsettle the delicate balance that legislatures, agencies, and other entities have put in place in order to control airborne emissions. The court also made clear that since the CAA sets forth a comprehensive approach for dealing with interstate emissions—the very issue for which North Carolina sought injunctions—that it was not the place of the judiciary to establish a patchwork set of standards based on tort liability. The court did note, however, that this case did not stand for the proposition that Congress has entirely preempted emissions regulation, but still emphasized the need for a uniform permitting system and that state public nuisance law could not render TVA’s emissions a nuisance when its actions were not negligent and were otherwise authorized by state and federal law. Further, the court followed a long line of precedent and found that the law of the state where the emission sources are located would apply to an interstate nuisance dispute; thus, the district court violated established federalism principles by applying North Carolina standards extraterritorially to the plants in Tennessee and Alabama. The court instead directed North Carolina to pursue other remedies, including section 126 of the CAA which provides potential relief from interstate emissions.

Click here to read the opinion.

Balch & Bingham Hosts Urban Tree-Planting

Wed, 28 Jul 2010 14:37:03 GMT

On July 27, 2010, Balch & Bingham LLP hosted an urban tree-planting at Hawkins Park, a public park in the City of Birmingham, Alabama. Ten lawyers from Balch & Bingham’s Environmental and Natural Resources Section and eighteen summer law clerks participated in the tree-planting event. Hawkins Park includes a section of Roebuck Spring, a naturally-occurring spring that is home to the watercress darter (Etheostoma nuchale), which is listed as an endangered species under the federal Endangered Species Act.

The trees were planted as part of the American Bar Association’s (ABA) “One Million Trees Project,” which calls on ABA members to plant one million trees by 2014; this initiative was announced in 2009 by the ABA Section of Environment, Energy, and Resources (SEER). Steve McKinney, who is the chair of Balch & Bingham’s Environmental and Natural Resources Section, will begin his term as Chair of SEER in August of 2010.

In total, twelve trees were planted ranging from three gallons to ten gallons in size, including native species such as black tupelo, bald cypress, swamp chestnut oak, and sycamore. These trees were selected with the assistance of both the U.S. Fish and Wildlife Service and the City of Birmingham’s urban forester. Campers from the Park’s community center were on hand to observe the event and learn about environmental stewardship.

Balch & Bingham represents the City of Birmingham on endangered species compliance issues. The trees are intended to enhance the vegetated buffer zone around Roebuck Spring established by the City and protect the habitat of the endangered watercress darter. The watercress darter is a colorful fish capable of reaching just over two inches in length and thrives in densely vegetated, slow moving spring pools, feeding on insect larvae and crustaceans. The fish is naturally located in only four areas of the Black Warrior River Watershed, all within Jefferson County, Alabama—Seven Springs, Glenn Spring, Thomas Spring, and Roebuck Spring. It was originally listed in 1970 as an endangered species. Recent surveys by biologists have indicated that the darter population at Roebuck Spring is healthy and reproducing and have estimated the population of darters to be over 15,000, nearing the historical highs for total population at the site

EPA Denies 10 Petitions for Reconsideration Challenging its Endangerment Finding

Thu, 29 Jul 2010 16:26:55 GMT

In a 217-page notice, EPA denies the 10 petitions for reconsideration challenging its decision that greenhouse gases (GHGs) endanger human health (also known as the "endangerment finding").

In addition to the challenge at the agency level, there is also a pending lawsuit at the D.C. Circuit challenging EPA's actions with respect to the endangerment finding. 14 states (including Alabama and Mississippi) and two groups have challenged EPA's determination that GHG's endanger human health. The court put the case on hold pending EPA's actions, but filed an order last month indicating that the case will be held in abeyance until fourteen days after EPA’s decision on the petitions for reconsideration or August 16, 2010, whichever comes first. Therefore, 14 days from today is August 12 and parties should be expected to file motions governing further proceeding then.

The petitions rejected today were filed by the Coalition for Responsible Regulation, the Competitive Enterprise Institute, the Ohio Coal Association, the Pacific Legal Foundation, Peabody Energy Co., the Southeastern Legal Foundation, the U.S. Chamber of Commerce, the states of Texas and Virginia, and one private citizen.

Click here to read EPA's notice of denial.

Partner at Balch Speaks to Youth on Water Issues

Fri, 30 Jul 2010 08:51:11 GMT

Keystone Science School’s Youth Policy Summits (YPS) provide students with a distinctive training and preparatory experience that engages a current, science-intensive policy issue. Their experience provides them with the research, negotiation, problem solving, and policy analysis skills they will need to be successful in their future endeavors.

In partnership with the Alabama School of Fine Arts, The Keystone Center conducted a Youth Policy Summit on July 25, 2010 focused on Water Quality and Human Health. This year’s Summit was held at the Birmingham Botanical Gardens. Rob Fowler, a Partner in the environmental section at Balch & Bingham, spoke on a panel at the Summit about water issues. Rob focused mainly on sustainability and how to manage population growth with clean water. Matthew Bowden, Vice President of Environmental Affairs for Alabama Power, was also present at the Youth Summit. Matt is a former partner in the environmental section at Balch & Bingham.

Click here for more information on the Keystone Centers Youth Policy Summit.

This Week in Environmental History (August 2 - 8)

Mon, 02 Aug 2010 17:45:13 GMT

On August 7, 1978, President Jimmy Carter declared that environmental contamination in the Love Canal neighborhood of Niagara Falls, New York, to be a federal health emergency. This was the first time that such executive action had been directed against a man-made environmental disaster. On the basis of Carter’s directive, federal funds were allocated for remediation work and the Federal Disaster Assistance Agency began actively assisting the City of Niagara Falls in cleaning up the site.

The genesis of the Love Canal disaster can be traced to the last years of the nineteenth century, when Edwin Love began excavating a canal to connect the Niagara River above Niagara Falls with Lake Ontario. His bold scheme failed, however, with only a mile of canal excavated. By the 1920s, the City of Niagara Falls was using the inlet as a dumping site and, in 1942, the Hooker Electrochemical Company eyed the canal for similar purposes.

Armed with permission from the Niagara Power and Development Company, Hooker drained the canal, lined it with thick clay, and began placing fifty-five gallon barrels into it. Hooker’s disposal continued for a decade. Thousands of barrels containing some 21,000 tons of caustics, alkalines, fatty acids and chlorinated hydrocarbons ultimately accumulated in the canal, buried under layers of dirt of varying depths. In 1947, Hooker purchased the canal and its seventy-foot wide banks; in 1953, it completely covered the canal with dirt and allowed vegetation to begin to grow atop it.

That same year, however, the City of Niagara Falls, facing a burgeoning school population, pressured Hooker into selling the property to the city for the site of a new school. Protesting, Hooker did so for one dollar and memorialized the site’s historic use as a dump site in the transaction’s closing documents. Nevertheless, the city proceeded to build what became the 99^th Street School and, in the meantime, a working-class neighborhood grew up in the vicinity.

By the 1970s, it was abundantly clear that the buried chemicals were seeping out into basements, swales, and ditches. At times, even the corroding drums themselves rose to the surface. Meanwhile, the miscarriage rate among pregnant residents drew increasing attention and one survey reported birth defect rates as high as 56%. Ultimately, both the state and federal government took action. The 99^th Street School was demolished, some 800 of the neighborhood’s original 900 residents were relocated at government expense, and remediation of the original 16-acre dump site began.

On the national level, Love Canal graphically illustrated the challenges local communities and the government faced when confronted by abandoned hazardous dump sites. Spurred to action, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to, in part, create a so-called Superfund that would finance future cleanups. CERLCA was signed into law by President Carter on December 11, 1980. -- Posted by Jim Noles

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This Week in Environmental History (August 23 - 29)

Wed, 25 Aug 2010 08:04:34 GMT

On August 25, 1916, President Woodrow Wilson signed the National Park Service Organic Act into law, thereby creating the National Park Service. Congressman William Kent, of California, and Senator Reed Smoot, of Utah, sponsored the key legislation.

“The service thus established,” the Act read, “shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

At the time of the Service’s creation, what would ultimately be recognized as the National Park system already included a number of parks – some still household names, others long since subsumed into less prestigious categories – generally administered under the direct auspices of the Department of the Interior. Their numbers included Yellowstone, Yosemite, Wind Cave, Rocky Mountain, Mount Ranier, Mesa Verde, Lassen Volcanic National Park, Glacier National Park, Kentucky’s Abraham Lincoln National Park, Hawaii National Park, California’s General Grant National Park, Oklahoma’s Platt National Park, North Dakota’s Sullys Hill National Park, and Michigan’s Mackinac National Park. Increasing evidence of neglect and mismanagement of the parks had underscored the need for an independent agency to administer these and future parks.

President Wilson appointed Stephen Mather, the 49-year-old president and owner of the Thorkildsen-Mather Borax Company, as the National Park Service’s first director. Mather, an ardent conservationist in addition to being a millionaire industrialist, had lobbied for three years for the creation of a national service to oversee America’s national parks. Other vocal proponents of the National Park Service had included Pennsylvanian Horace McFarland, journalist Robert Sterling Yard, Frederick Law Olmstead, and Congressman John Raker.

Today (based on fiscal year 2008 numbers), the National Park Service boasts 28,000 employees and is responsible for 84 million acres of land, 4.5 million acres of oceans, lakes and reservoirs, 2,461 national historic landmarks, and 392 national parks and units. The Service’s current director is Jonathan B. Jarvis, who began career as a seasonal interpretive ranger on the National Mall in 1976. – Posted by Jim Noles

This Week in Environmental History (August 30 - September 5)

Mon, 30 Aug 2010 17:52:36 GMT

On September 1, 1914, “Martha,” the last known passenger pigeon (Ectopistes migratorius), died in captivity at the Cincinnati Zoo.

At one time, the passenger pigeon was a common fixture in North America, living in incredibly vast migratory flocks. Some witnesses reported such flocks darkening the skies, one mile in width and as many as 300 miles in length.

John James Audubon witnessed one such migration while traveling through Kentucky in 1813. The naturalist wrote of a flock that took days to pass, that “the light of noonday was obscured as by an eclipse,” and that it took over three days to pass by. Men and boys lined the banks of the Ohio River, firing rifles into the air at the dark mass of birds above them. “For a week or more, the population fed on no other flesh than that of pigeons,” Audubon declared.

By even then, however, a gradual decline in the pigeon’s massive numbers had begun, accelerating to a catastrophic pace by 1870. In retrospect, the loss of the passenger pigeon was two-fold. First, habitat loss denied the birds the large-scale nesting grounds that their prodigious numbers required. Second, as pigeon meat became an increasingly common staple of diet for America’s poor and slave populations, commercial hunting increased dramatically. Hunts of single roosting sites would last for months, with box-car loads of pigeon meat being shipped to Eastern cities. By 1896, the last large flock has been wiped out and, on March 22, 1900, the last documented sighting of a wild passenger pigeon occurred.

Meanwhile, the pigeon’s communal nature and vast size of its flocks foiled tardy efforts to bring it back from the brink of extinction. The smaller groups that conservationists attempted to raise in captivity were at odds with the bird’s genetic proclivities with respect to breeding. By 1914, it became clear that a passenger pigeon held at the Cincinnati Zoo – nicknamed “Martha,” after Martha Washington – was the last of its kind. When it died, the zoo shipped the body off to the Smithsonian Institution and erected a memorial that ultimately became a National Historic Landmark. – Posted by Jim Noles

USFWS Proposes Massive Expansion of Cahaba River National Wildlife Refuge

Tue, 31 Aug 2010 20:53:28 GMT

The United States Fish & Wildlife Service (FWS) is currently proposing to expand the existing 3,608-acre Cahaba River National Wildlife Refuge by an additional 106,415 acres in Bibb, Chilton, Jefferson, Perry, and Shelby Counties. FWS also proposes protecting an additional 173,380 acres as a “conservation area” that would remain in private ownership but be controlled by conservation easements. In support of this proposal, FWS has issued a “Draft Environmental Assessment and Land Protection Plan (June 2010), available at http://www.fws.gov/southeast/planning/LA/CahabaRiverDraftEAsinglePgDoc.html.

Written public comments on the Service’s Draft Environmental Assessment and Land Protection Plan for the expansion of the refuge and the establishment of the conservation area will now be accepted until Tuesday, September 7, 2010. Public comments on the proposal should be sent to Ms. Kimberly Eldridge, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Suite 420, Atlanta, Georgia 30345 no later than September 7, 2010.

FWS will also hold a public meeting on the proposal; September 2, 2010, from 5:00 – 7:00 p.m. at the Brent Elementary School gymnasium, 160 4th Street, Brent, Bibb County, Alabama. The purpose of the meeting is to answer questions from the public and accept comments concerning the refuge proposal. Concerned citizens are being encouraged to attend, ask questions, and voice any concerns regarding this proposed expansion.

USFWS Extends Public Comment Period on Proposed Expansion of the Cahaba River NWR

Fri, 03 Sep 2010 14:30:23 GMT

USFWS held a public hearing yesterday on the proposed expansion. Hundreds of people came to voice their support, but mainly concerns for the 280,000 acre expansion. Senator Shelby and Rep. Bachus have already sent letters to USFWS raising concerns they have with the proposed expansion. In light of the public's interest in this issue, USFWS extended the comment period to December 6, 2010. If you are interested in sending in comments, click here for USFWS's official comment form on the expansion.

For more information about the proposed expansion, see yesterday's blog post.

What's the Best "Green" Song Ever?

Fri, 10 Sep 2010 15:59:40 GMT

What's your pick for the best environmental song ever? "Big Yellow Taxi" (recorded by Joni Mitchell's or the Counting Crows?)? The Eagles' "The Last Resort"? REM's "Cuyahoga"? Midnight Oil's "Blue Sky Mine"? Or something else? You pick the song and you make the case for it. Send your pick and a compelling argument (points awarded arbitrarily for wit, brevity, and complete sentences) to Jim Noles at jnoles@balch.com. Sometime this weekend or next week (recall reference to "arbitrarily" in preceding sentence), Jim will pick a winner and feature his or her winning argument on our blog. And he'll raid the Balch & Bingham merchandise client and send the winner whatever logo-emblazoned stuff he can find. So get cracking! After all, it's Friday afternoon and you're apparently doing nothing else right now but surfing the Web anyway . . . -- Posted by Jim Noles

B&B Coal and Surface Mining Update

Tue, 14 Sep 2010 17:01:31 GMT

In this update, Balch explores EPA's push for conductivity limits and WET testing, as well as other topics that affect the coal mining industry.

Click here to read the update.

EAB Rules PSD Permit Not Required to Regulate Greenhouse Gas Emissions in Illinois

Wed, 15 Sep 2010 14:17:35 GMT

Today, U.S. EPA announced the Environmental Appeals Board’s (EAB) decision denying a Sierra Club petition challenging a PSD permit issued by Illinois EPA (IEPA) to Power Holdings of Illinois granting approval to the construction of a new synthetic natural gas (SNG) manufacturing plant in Jefferson County, Illinois.

The Sierra Club sought review on three issues: 1) that the final permit does not include a flare minimization plan (FMP) and that it allows Power Holdings to develop a FMP without full public participation, 2) that it permits SNG or natural gas, as opposed to just natural gas, to be used to fire the plant’s superheaters without addressing emissions associated with SNG manufacture, and 3) that it fails to regulate greenhouse gas emissions, thereby violating—according to the Sierra Club—an Illinois statutory emissions limitation in its approved state implementation plan (SIP).

The EAB denied review on all three issues, finding first that the disputed FMP requirement does not operate in lieu of, but instead supplements, the permit’s best available control technology (BACT) emissions limitations and other requirements and that it reasonably and properly requires Power Holdings to develop a FMP based on its actual operating experience. Second, the Board held that the Sierra Club failed to meet its burden of demonstrating that collateral environmental impacts would justify the elimination of SNG as a fuel option for the superheaters and that there are no significant or unusual circumstances that would support the rejection of SNG as BACT.

Finally, the Board denied review of the greenhouse gas issue. The Sierra Club argued that the PSD permit’s failure to regulate greenhouse gases (CO₂ and methane) constitutes a violation of a state emissions standard incorporated in an approved Illinois SIP, but IEPA interprets that standard as inapplicable to greenhouse gases. See Ill. Admin. Code tit. 35, § 201.141. The Sierra Club argued that greenhouse gases constitute “contaminants” that cause or tend to cause “air pollution” and that IEPA must therefore ensure compliance with this provision in its PSD permitting program. The EAB noted that IEPA had established that it does not interpret the provision as requiring regulation of greenhouse gases. Emphasizing the substantial deference to which a state’s interpretation of its own laws is entitled, the Board did not find IEPA’s interpretation to be so unreasonable as to trigger review.

Click here to read the opinion.

EPA Brownfields Grant Opportunities

Fri, 24 Sep 2010 16:14:06 GMT

EPA is currently soliciting applications for its FY2011 Brownfields Assessment, Revolving Loan Fund and Cleanup Grants. These grants may be used to address sites contaminated by petroleum and hazardous substances, pollutants, or contaminants (including hazardous substances co-mingled with petroleum). Opportunities for funding are as follows: Brownfields Assessment Grants (each funded up to $200,000 over three years; coalitions are funded up to $1,000,000 over three years), Brownfields Revolving Loan Fund (RLF) Grants (each funded up to $1,000,000 over five years) and Brownfields Cleanup Grants (each funded up to $200,000 over three years). The proposal deadline is October 15, 2010. For more information visit http://www.epa.gov/brownfields/applicat.htm. -- Posted by Jim Noles

Top Green Song Picked

Fri, 24 Sep 2010 16:27:24 GMT

After two weeks of careful rumination, a select panel of record industry executives and leading environmental attorneys (well, me, anyway) have culled through hundreds (well, maybe not quite "hundreds") of nominations submitted by the ever-faithful followers of the Southeast Environmental Blog. In ascending order, and accompanied by editorial comments that are in no way reflective of (or even necessarily endorsed by) this law firm or its clients, the tunes in question are:

10. Cuyahoga, by REM. Sure, the song's title refers to the burning of Ohio's Cuyahoga River in 1969 (see the earlier blog post on this topic), but just what does "underneath the river bed we burned the river down" mean? My apologies to REM fans everywhere. Let the lambasting commence . . .

9. Wake Up America, by Miley Cyrus. Ha. I just picked this one just to further irritate all you REM fans . . .

8. Paradise, by John Prine. A relatively obscure yet tragically hip choice. Feel good about yourself for picking this one. You know who you are . . .

7. The Oil Song, by Steve Forbert. Steve sings "Don't buy it at the station, you can have it now for free. Just come on down to the shoreline where the water used to be." This one goes out to my friends at Orange Beach's Tacky Jacks.

6. Don't Go Near the Water, by The Beach Boys. See above. This one is for the Florabama.

5. Big Yellow Taxi. The purists demanded the Joni Mitchell version, others liked Counting Crows. I guess it depends if you want the cab to taking "my old man" or "my girl" away.

4. Blue Sky Mine, by Midnight Oil. This one just rocks. It's what Mad Max would be jamming out to as he drove Joni Mitchell's big yellow taxi into Lord Humungous and his band of post-apocalyptic marauders.

3. The Last Resort, by The Eagles. Great from the first line -- "She came from Providence, the one in Rhode Island." And it bookends Hotel California, which, frankly, sort of freaked me out as a small child listening to it on the eight-track in my dad's British racing green-colored MGB.

2. Mercy Mercy Me (The Ecology), by Marvin Gaye. Second hit off Gaye's 1971's What's Going On. This one scores on sheer grooviness alone.

1. We've Got to Do Something, by Aldous Snow and Infant Sorrow. Featured briefly in the underappreciated movie Forgetting Sarah Marshall. "Because if I were in government, I would government things much more differentlier." No, that's not a typo. Just the sincere sentiments of the man who brought you "African Child." And probably some other folks as well . . .

Have a great weekend, all!

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Environmental Litigation Partner Participates in Climate Change Mock Trial

Wed, 06 Oct 2010 08:05:29 GMT

Mike Freeman, a partner in Balch & Bingham’s Environmental Litigation Section, recently participated in a mock trial modeled after Comer v. Murphy Oil.

Last week in New Orleans, as part of the 18th Fall Meeting of the ABA Section of Environment, Energy, and Resources Law, Mike Freeman played the role of defense attorney in the Litigation Workshop: Battle of the Climate Change Experts. In the mock trial, the plaintiffs had lost their home in a hurricane and suffered extensive property damages and personal injuries; they sued over 100 companies for nuisance and negligence, claiming that the companies’ greenhouse gas emissions contributed to and intensified the hurricane. Mike deftly argued before the Honorable Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana that, since the defendant companies had obtained the necessary environmental permits from EPA and state agencies, their operations—including emissions—were lawful and not subject to nuisance claims in federal court. Mike also offered practical advice to attendees about environmental litigation practice. Allan Kanner, founder and senior member of litigation firm Kanner & Whiteley, argued for the plaintiffs’ side in the mock trial. Dr. Roy W. Spencer, Principal Research Scientist at the University of Alabama in Huntsville and global warming science expert, provided expert testimony for the defense, while ecologist Dr. Mark Laska of Great Ecology and Environments, Inc., gave expert testimony for the plaintiffs.

Completion of Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety

Tue, 12 Oct 2010 10:01:17 GMT

Tom Redick, Coordinator of Committee Newsletters for the ABA Section of Environment, Energy, and Resources and author of the cover story on biotech liability in the September/October issue of Trends, sends news from Nagoya, Japan, where the parties to the Biosafety Protocol have just finished negotiating the first international environmental law on biotech liability, today, October 12, 2010:

After negotiations that began in 1996 at the first meeting of the Biosafety Working Group, a negotiating group, the Cartagena Protocol on Biosafety finally completed, and submitted for consideration, the text of the first international law on liability for “modified organisms” produced by biotechnology. Given the role of two Asian cities in these negotiations, the law is titled the “Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety” (“NKL Supplemental Protocol”). It will open for signature after this meeting if approved by all parties, which should occur soon without interruption.

Late in the negotiations, the most contentious issue holding up the negotiations into the middle of the night was the resolution of the words “products thereof” – i.e., food and other products made from a living modified organism (LMO). Developed nations in support of biotechnology expressed the view that the Biosafety Protocol text itself leaves out “products thereof” (that contentious negotiation ended in 2000 in Cartagena) and that the liability protocol should not exceed the scope of the Biosafety Protocol.

Industry representatives found the outcome acceptable, as did some of the African nations that had negotiated (largely in bloc votes excluding South Africa). The question of food recalls and “products thereof” appeared less problematic when causation issues were considered, and nations writing laws will surely use this text, pre-ratification, to guide their own laws. Kenya’s delegate congratulated the group creating this law, and offered an endorsement of biotech crops as one option to feed the hungry (implicitly criticizing the EU for its reluctance to allow biotech crop imports). He urged cooperation to eliminate untruthful distortions about LMOS and called for a public awareness campaign to use biotech to feed hungry mouths. India’s delegate expressed “extreme happiness” at the outcome and called for cooperation to build the capacity to regulate and compensate (under liability law) any harm that eluded regulation. (India will host the next meeting of the parties in Delhi in 2012). Attention now shifts to the ratification process, as well as the now-in-place historic industry “Compact” promising arbitration of claims relating to harm to biodiversity caused by biotech crops and other straying “LMOs” and domestic laws on biotech liability, which may precede the eventual ratification (or failure to ratify) the NKL Supplemental Protocol. In the opinion of this author, which is shared by many involved in this process, this voluntary commitment to compensating harm played a large role in reaching an outcome that the biotech industry and grain trade can tolerate.

Gov. Riley Appoints Three New Members to Environmental Management Commission

Wed, 13 Oct 2010 19:00:19 GMT

Governor Bob Riley named Samuel L. Miller, James Laier, and Marquita Davis to the Alabama Environmental Management Commission today, October 13, 2010. Commission members oversee the development of Alabama’s environmental policies, adopt environmental protection regulations, and hear administrative appeals of orders and permits issued by the Alabama Department of Environmental Management (ADEM).

Dr. Samuel L. Miller is an orthopedic surgeon in Montgomery and has been appointed to the Commission seat reserved for a physician. Dr. Miller attended medical school at UAB and is affiliated with Baptist Medical Centers South and East, as well as Montgomery Surgical Center.

Dr. James Laier, who will occupy the spot on the Commission reserved for an engineer. Dr. Laier is the associate dean of the University of South Alabama’s College of Engineering and CEO of Southern Earth Services, Inc. He began his career more than four decades ago with the U.S. Army Corps of Engineers after earning a Ph.D. in civil/geotechnical engineering from the University of Florida.

Dr. Marquita Davis, director of the Alabama Department of Children’s Affairs, will fill a vacant at-large seat on the Commission. Dr. Davis has a Ph.D. in Early Childhood Education and Development from UAB and served in the past as the director of Alabama’s Office of School Readiness and as the leader of the Head Start Program for the Jefferson County Committee for Economic Opportunity.

Alabama's Endangered Species Attract National Interest

Sun, 24 Oct 2010 14:50:56 GMT

As the award-winning on-line Encyclopedia of Alabama (EOA) (www.encyclopediaofalabama.org) notes, the state of Alabama is currently home to 117 endangered or threatened species, of which 99 are animals and 18 are plants. This is among the highest concentration of such species in the nation.

Such species merit national attention, as this week's statistics from the EOA reveal. Among the articles from the EOA viewed on-line this week, the third-most visited was "Endangered Species of Alabama." Many of those visits came from Ft. Lauderdale and Dania Beach, Florida, where students viewed the Endangered Species of Alabama entry more than 120 times.

Former EPA Region 4 Administrator Named Executive Director of Gulf Coast Ecosystem Restoration Task Force

Tue, 26 Oct 2010 16:45:06 GMT

Hankinson currently works as an environmental and conservation lands consultant, counseling on environmental management and land use across the southeastern United States. He served as EPA Region 4 Administrator from 1994 until 2001. As Executive Director of GCERT, Hankinson will coordinate interagency effort to develop a restoration strategy for the ecosystem in the region. For more information, click here.

Two Fines for the Same Environmental Violation?

Thu, 04 Nov 2010 15:54:39 GMT

Repeat EPA action may not be precluded by Double Jeopardy

When a company settles with state environmental agency, it may believe the matter is over. As a Raeford, North Carolina poultry processor has recently learned, that is not necessarily the case. A civil settlement - even for large sums - will not necessarily preclude a subsequent criminal prosecution by the United States EPA. It is equally true that a state civil settlement does not mean no federal civil action will follow.

On October 20, the U.S. Court of Appeals for the 4th Circuit ruled that criminal proceedings against House of Raeford Farms, Inc. should proceed, despite earlier settlements with the City of Raeford, North Carolina totaling almost $1,000,000 for the same violations. The result was not surprising. Since the Supreme Court decided United States v. Halper in1989 it has been clear that with certain exceptions, double jeopardy will not protect a party to a previous civil settlement from criminal prosecution for the same conduct.

What is perhaps more troubling is that EPA may also enforce a civil matter against a party after the party settles with a state for the same alleged conduct. EPA has made it clear that it may seek additional civil relief under environmental statutes against companies who have already settled with states authorized to enforce the same statutes. This is so despite case law which has declared overfiling improper. The reach of such case law is limited, however, and will not stop EPA in most venues.

Steps can be taken to prevent duplicative civil and criminal enforcement by EPA. First, when settling with a state agency, a company should make sure all violations are on the table and will be covered by the settlement. An enforceable plan for future compliance should also be part of the settlement agreement and any penalties should reflect the severity of the violations. Other approaches might include self-audits and voluntary disclosures of violations to EPA. These measures and others should involve qualified legal counsel.

On this topic, please contact Stephen Gidiere, (Alabama); Rich Glaze, (Georgia); or Teri Wyly, (Mississippi).

The Coastal Recovery Commission of Alabama Releases its Report

Wed, 15 Dec 2010 14:55:57 GMT

The report recommends that the state focus on three main areas to recover from the oil spill and to prepare for other disasters. These are Alabama’s environment, society, and economy. The environment section details ways to improve Alabama’s coastal environment and to prepare it for similar disasters. The section on society discusses ways Alabama’s health care, education and public safety systems can be improved so that resiliency in the face of disaster can be achieved. The economic section focuses on the coast’s fishing, tourism, and small businesses to determine how they can be supported during this crisis and beyond. In addition, there is a section on insurance which details strategies to provide affordable insurance coverage to coastal residents.

The report also lists over 200 proposals that commission members have put on the table during the past three months. In addition, it recommends a procedure for project selection, suggesting that projects be rated on a scale of 1 to 10 based on their ability to bring about coastal recovery or resilience, transformative change, regionalism and economic diversification, as well as their impact on the environment.

The eighty-member Commission was chaired by Ricky Mathews, the president and publisher of the Mobile Press-Register. Mathews led a similar commission in Mississippi after Hurricane Katrina struck the Mississippi Gulf Coast. To view the entire report, click here.

U.S. DOJ Files Suit Against BP

Thu, 16 Dec 2010 11:42:51 GMT

The Complaint sets forth that the defendants BP, Anadarko, and MOEX held joint rights under a lease executed with the United States to drill certain portions of the Outer Continental Shelf for oil and gas. To this end, BP contracted with Transocean for operation and use of the Deepwater Horizon, a mobile offshore drilling rig. Their drilling efforts ultimately led to the uncontrolled well event and blowout at the Macondo Well, which resulted in the massive discharge of oil into the Gulf. Lloyd’s provided a Certificate of Financial Responsibility and certain guarantees pertaining to liabilities incurred by the Deepwater Horizon.

The United States alleges that the various defendants, through their actions and omissions, failed to: (a) prevent the blowout, (b) take necessary precautions to keep the well under control, (c) use the best available technology in managing the well, (d) fulfill their responsibilities to maintain well control, (e) maintain continuous surveillance on the rig floor, (f) maintain equipment and materials necessary to ensure the safety and protection of personnel, equipment, natural resources, and the environment, (g) comply with applicable federal regulations, (h) assure well control, and (i) assure that, once lost, well control was regained by proper and adequate emergency operations. As a result, millions of barrels of oil were discharged into the Gulf and upon adjoining shorelines. This discharge not only resulted in enormous environmental damage and economic harm to the region, but also necessitated an on-going government response “unprecedented in size, duration, and expense.”

Click here to view the Complaint.

B&B Attorneys Review Proposed Coal Ash Regs

Mon, 03 Jan 2011 10:58:51 GMT

Steven Burns and Mary Forman Samuels have published this analysis of EPA's proposed regulations for the management and disposal of coal combustion byproducts ("CCBs"). It appears in the December 2010 issue of Engage, a publication of the Federalist Society.

Why do we say "CCB," when EPA uses different terminology?

EPA's proposed rules use the terms "coal combustion residual" ("CCR") to refer to material bound for disposal and "coal combustion product" ("CCP") if it's recycled or reused. We think that distinction is unnecessary, for a simple reason: It's the same material either way. The only difference is the producer's intent as to whether to dispose of it or reuse it.

Why would EPA use two different terms to describe the same material? One possibility may be that EPA wants to create a contrast to justify more stringent disposal standards under Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), which governs hazardous waste. The alternative is to issue solid waste standards under RCRA Subtitle D. EPA must choose one or the other before finalizing the regulations.

The material tests as non-hazardous under EPA's own toxicity characteristic leaching procedure ("TCLP"). There is no question that CCBs may contain minute percentages of metals that would be harmful if ingested in large enough quantities over time. The issue is not whether those metals exist; it's whether they are especially prone to leaching. If that were the case, the concern would be the potential for migration into underground drinking water supplies and other environmental receptors. However, application of the TCLP to CCBs consistently demonstrates that CCBs are not prone to leaching in a manner that would justify Subtitle C regulation. That means the extra precautions required under Subtitle C are not necessary to address environmental issues.

For CCBs, as between Subtitles C and D, here's the real issue: Only Subtitle C provides EPA direct permitting and enforcement authority. Congress granted the states primary regulatory authority for solid waste (although RCRA authorizes EPA to approve or disapprove of state solid waste management plans). In other words, it's not about the CCBs, it's about federal control at the expense of state authority.

EPA said it wanted to encourage CCB recycling, as it has in the past. However, there's someting incongruous about saying the very same material is hazardous if you put it in a landfill, yet non-hazardous if you reuse it in concrete (as with some coal ash), for road-building (ditto), or in wallboard (as with gypsum, a by-product of using scrubbers to remove pollution from air emissions). Perhaps anticipating that point, EPA created two different terms: they're CCRs if they're waste, but they're CCPs if they're to be recycled.

We think the term "CCB" is accurate and descriptive, and it acknowledges the reality that it's one set of materials, not two.

This Week in Environmental History (January 10 - 16)

Wed, 12 Jan 2011 09:06:30 GMT

Birth of Aldo Leopold, January 11, 1887

Born on January 11, 1887, in Burlington, Iowa, Aldo Leopold was a forester, conservationist, and an early proponent of preserving wilderness areas. His book A Sand County Almanac, a collection of essays posthumously published in 1949, is recognized as one of the modern environmental movement’s most influential books.

Leopold earned Bachelor of Philosophy and Master of Forestry degrees from Yale University in 1909. He then joined the U.S. Forest Service and served in the Apache and Carson National Forests in Arizona and New Mexico, ultimately rising to the position of the district’s chief of operations. While in the Southwest, his accomplishments included writing the Forest Service’s first game and fish handbook and developing the first comprehensive management plan for the Grand Canyon.

Leopold’s most memorable accomplishment during this time came in 1922, however, when he proposed that the headwaters of the Gila River, in the Carson National Forest, be essentially preserved as a wilderness area through the administrative mechanisms of denying use permits and excluding roads. In 1924, this area was recognized as the first wilderness area in the National Forest system; forty years later, following the passage of the Wilderness Act, it became America’s first congressionally-designated Wilderness Area.

After fifteen years in the Southwest, Leopold transferred to Wisconsin, where he became an associate director of the Service’s U.S. Forest Products Laboratory. He left the Service in 1928 and, in 1933, accepted a position as chair of game management at the University of Wisconsin.

In Wisconsin, Leopold purchased an eighty-acre farm in Sauk County, near the town of Baraboo. The farmstead, which had suffered from soil erosion, clear-cutting, and overgrazing, provided a vivid example of man’s environmental impact on the land. His experiences and observations during a year on his farm led to a series of essays ultimately entitled A Sand County Almanac (the title of the book is somewhat of a misnomer; there is no “Sand County” in Wisconsin; rather the title of the book refers to those counties in Wisconsin (such as Sauk) known for their sandy soil).

A Sand County Almanac is replete with commentary and arguments for an environmental ethic that fits mankind into a co-existent relationship with the natural world. In a famous passage from the book, Leopold wrote, “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”

Leopold died on April 21, 1948, from a heart attack suffered while helping a neighbor battle a wildfire. – Posted by Jim Noles

Industrial Boiler MACT Rules To Be Released Feb. 2011

Thu, 20 Jan 2011 16:14:29 GMT

In 2007, the D.C. Circuit Court of Appeals vacated the National Emissions Standard for Hazardous Air Pollutants (“NESHAP”) for Industrial, Commercial and Institutional Boilers and Process Heaters (Subpart DDDDD). An enviornmental group sued in the District Court for the District of Columbia to require EPA to finalize the IB MACT rule by January 2011.

On June 4, 2010, EPA proposed the NESHAP for new and existing industrial/commercial/institutional boilers and process heaters (“CISWI Rule and IB MACT Rules”). 75 Fed. Reg. 32006 (June 4, 2010).

On December 7, 2010, EPA requested an extension of the existing deadline to promulgate the final CISWI Rule and IB MACT Rules for area sources and major sources. EPA stated that the additional time was necessary to address the more than 4,800 comments that were received on the proposed rules and to review a significant amount of additional data that was submitted during the comment period. EPA indicated that some of the comments raise issues that were not originally considered during the initial rulemaking. Because these issues may substantially affect the final rule, EPA is requesting to “repropose” the rules so that the final rules are logical outgrowths of the proposals. If the Court grants the request the deadline for the revised proposals will be June 1, 2011 and the deadline for promulgation of final emissions standards will be April 13, 2012.

Today, on January 20, the Court denied EPA's request and ordered that the rules be finalized by February 21, 2011. The Court claims that EPA failed to show that it would have been impossible to meet the previous deadline; however, the Court proceeded with giving the agency an additional month to finalize the rules. Specifically, the Court's order reads: "No later than February 21, 2011, the Agency shall promulgate emission standards assuring that sources accounting for not less than ninety percent of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under Section 112(d)(2) or (d)(4)."

Attached is the Opinion and Order.

The Uncertain Future of the Gulf Coast Claims Facility

Wed, 16 Feb 2011 16:29:25 GMT

The PSC argued that Feinberg and BP were misleading claimants about the independence of the fund, and asked Judge Barbier to order changes to the overly broad liability release form required for final claims (which released BP and all others associated with the spill from any future liability). The States of Mississippi, Louisiana and Florida expressed support for the motion.

On February 2, 2011, Judge Barbier ruled that Feinberg was not “independent” from BP and that it was misleading for Feinberg to call himself a “neutral” party in administering the GCCF. Judge Barbier concluded that BP had created a “hybrid entity, rather than one fully independent of BP” and that Feinberg’s claim of neutrality was a “direct threat to ongoing litigation.” He ordered Feinberg to stop giving legal advice to unrepresented claimants and to inform claimants of the existence of the MDL and their right to consult a lawyer and be added to the many U.S. lawsuits that seek damages independent of the fund. Judge Barbier did not make a specific ruling on the liability release issue, but instead ordered the parties to submit additional briefing on the issue by February 11, 2011. The parties also must address the question of “whether and how BP as the responsible party is fully complying with the mandates of [the Oil Pollution Act of 1990].”

The ruling is a major victory for oil spill victims and has been praised by lawyers representing Gulf Coast residents affected by the spill. It could undermine the GCCF and even result in 87,000 settlements being re-examined. Thousands of oil spill victims may now choose to bypass the claims process, and instead seek redress in the courts. For a copy of the ruling, click here.

Corps To Reissue and Modify Nationwide Permits

Mon, 21 Feb 2011 15:56:02 GMT

On February 16, 2011, the Corps of Engineers provided notice of a 60 day comment period for the proposed reissuance of 48 of the 49 existing nationwide wetlands dredge and fill permits (NWPs) to replace the current versions of the permits when they expire on March 18, 2012. The Corps proposes modifying existing NWPs and definitions and issuing two new NWPs. The Corps also proposes to amend certain general conditions (GCs) and to add two new GCs. The Corps will not reissue NWP 47: Pipeline Safety Program Designated Time Sensitive Inspections and Repairs. Comments are due April 18, 2011.

New NWPs include Proposed NWP A for construction, expansion, or modification of land-based renewable energy production facilities, and Proposed NWP B for the construction, expansion, and modification of hydrokinetic or wind energy generation pilot projects and their attendant features. The new GCs proposed are GC 23 requiring impoundment safety design consistent with 33 CFR § 320.4(k) and GC 14 addressing artifacts discovered during construction of the authorized activity.

Proposed modifications to NWP 3 Maintenance include clarification that stream channel excavation immediately adjacent to the structure or fill being maintained is authorized under NWP 3(a) and does not require a pre-construction notification and that an activity does not need to include the placement of new or additional riprap in order to qualify for the NWP.

Many of the proposed GCs include modifications, such as requiring bottomless culverts where practicable under GC 2, revising the mitigation language in GC 22 to more closely match the Corps mitigation regulations at 33 CFR part 332, and clarifying the waiver provisions under GC 29. The Corps also proposes splitting the definition of “Single and Complete Project” into “Single and Complete Linear Projects” and “Single and Complete Non-Linear Projects” to clarify how the ‘‘independent utility’’ test applies to non-linear projects.

Just What Is Alabama's Solid Waste Management Advisory Committee?

Thu, 24 Feb 2011 09:26:53 GMT

Yesterday's gubernatorial Executive Order No. 8 (see previous blog post or visit http://governor.alabama.gov/pr/news_detail.aspx?ID=4704) required the Alabama Department of Environmental Management to promulgate new landfill regulations for large and regional landfills and imposed an immediate moratorium on new permits for such landfills (or their expansion or transfer to a new owner) until such regulations were developed. The order tasked Alabama's Solid Waste Management Advisory Committee with advising ADEM through this process.

Perhaps not suprisingly, one of the initial questions raised today has been: what is the Solid Waste Management Advisory Committee?

As it turns out, the Committee has been around since 1989, when the Alabama Solid Waste Disposal Act, at section 22-27-44, stated the following:

There is hereby created a twelve member Solid Waste Management Advisory Committee to advise on the development of the Solid Waste Management Plan. The committee members shall be named as follows: two representatives designated by the Governor who shall be private citizens and who shall have been residents of the state for at least two years; two representatives designated by the State Health Officer; two representatives designated by the board of directors of the Association of County Commissions of Alabama; two representatives designated by the board of directors of the Alabama League of Municipalities; one member of the Alabama Environmental Management Commission selected by the commission; one representative from the Alabama Chapter of the Government Refuse Collection and Disposal Association selected from its membership by its board of directors; president of the Alabama Conservancy; and the chairman of the committee who shall be the chief of the Solid Waste Branch of the Department of Environmental Management. Said committee shall meet as necessary and shall advise the director of [ADEM] regarding the general development of the Solid Waste Management Plan and about such other specific matters as he shall bring to the committee's attention. Committee members shall serve without pay, but shall be reimbursed by [ADEM] for their actual expenses.

-- Posted by Jim Noles

Sierra Club Sues Department of Energy Over Future IGCC Plant

Fri, 11 Mar 2011 09:31:58 GMT

DOE awarded federal cost-shared funding to the Mississippi Power Company to develop a 582-megawatt IGCC plant in Kemper County, Mississippi. IGCCs are the latest technology for providing electricity from coal. IGCC turns coal into gas—synthesis gas (syngas). It then removes impurities from the coal gas before it is combusted. This results in lower emissions of sulfur dioxide, particulates and mercury. In addition to reducing these pollutants, the proposed plant will also undertake carbon capture and sequestration (CCS).

Sierra Club claims that DOE elected to finance the IGCC plant without fully disclosing its environmental impacts, and without undertaking any meaningful analysis of alternatives. With this lawsuit, Sierra Club seeks to enjoin DOE from releasing federal funding and from approving federal loan guarantees for the IGCC plant until DOE complies with NEPA and confronts the global warming impacts and other environmental consequences of this project both individually and cumulatively in combination with other federally funded projects.

Click here to read the complaint.

TVA Settles Clean Air Act Lawsuit for Up to $5 Billion

Fri, 15 Apr 2011 14:25:54 GMT

The settlement will require TVA to invest approximately $3 to $5 billion on new and upgraded state-of-the-art pollution controls and retire 18 coal-fired power plants. TVA will also invest $350 million on clean energy projects that will reduce pollution.

Once fully implemented, the pollution controls and other required actions will address 92 percent of TVA’s coal-fired power plant capacity, reducing emissions of nitrogen oxide (NOx) by 69 percent and sulfur dioxide (SO₂) by 67 percent from TVA’s 2008 emissions levels. The settlement will also significantly reduce particulate matter and carbon dioxide (CO₂) emissions.

Lastly, the settlement requires TVA to pay a civil penalty of $10 million, with Alabama and Kentucky receiving $500,000 each and Tennessee receiving $1 million.

Click here to read the settlement.

Click each state's name to read the press releases associated with this case from the Attorney Generals in Alabama, North Carolina and Tennessee.

EPA Delays Industrial Boiler MACT Rules

Tue, 17 May 2011 11:10:45 GMT

On March 21, 2011, the EPA issued a final rule to regulate emissions of hazardous air pollutants (HAP) from industrial, commercial, and institutional boilers and process heaters located at major sources of HAP emissions (the “Boiler MACT”). 76 Fed. Reg. 15608 (Mar. 21, 2011). This rule has an effective date of May 20. On the same day the rule was issued, the EPA also published a notice explaining that the Agency was in the process of developing a notice proposing reconsideration of certain aspects of the rule. 76 Fed. Reg. 15267.

Because the original May 20th effective date for the Boiler MACT rule is quickly approach, on May 16, EPA announced a final rule delaying that rule indefinitely until it finished the reconsideration process. EPA stated that "[a]s part of the reconsideration process, EPA will issue a stay postponing the effective date of the standards for major source boilers and commercial and industrial solid waste incinerators to allow the agency to continue to seek additional public comment before an updated rule is proposed.” "The stay will allow the agency to seek additional public comment before requiring thousands of facilities across multiple, diverse industries to make investments that may not be reversible if the standards are revised following reconsideration and a full evaluation of all relevant data," EPA said in a statement.

Attached is EPA's notice that will be published in the May 18th Federal Register.

2011 Alabama Legislative Session and the Environment

Tue, 14 Jun 2011 12:04:53 GMT

During the 2011 Alabama Legislative session, many environmental bills were addressed by the Legislature. Below is a general overview of the environmental bills passed during this session.

Forever Wild – The Legislature overwhelming voted to approve a constitutional amendment that would reauthorize the Forever Wild Land Trust for another 20 year. Approving a constitutional amendment allows Alabama voters to have the final say during the November 2012 on whether to keep the program going. The Forever Wild Program was established in 1992 to provide for the purchase of public recreational lands. Eighty-six (86) tracts totaling 222,771 acres located throughout the state have already been acquired.

Coal Ash Regulation – This law removes an existing exemption from regulation for fly ash waste, bottom ash waste, boiler slag waste, and flue gas emission control wastes and authorizes the regulation by Alabama Department of Environmental Management (ADEM) of those substances as a solid waste.

Environmental Penalties – This law removes the requirement to charge alleged violators a minimum penalty of $100 per day for certain violations.

Landfill Moratorium – This law places a 24-month moratorium on the issuance of permits by ADEM and any state and local governmental agency to new public solid waste landfills which would receive or are intended to receive waste not generated by the permittee. The purpose of this bill is to allow adequate time for ADEM and the Alabama Department of Public Health to review their responsibilities pursuant to the Solid Wastes and Recyclable Materials Management Act and for the update of the state’s comprehensive solid waste management plan to identify the state’s solid waste management needs. The law also provides a waiver procedure to allow the issuance for new such facilities of permits on a limited basis during the moratorium.

Alabama’s Fort Gaines Added to National Trust’s List of America’s 11 Most Endangered Historic Places

Thu, 16 Jun 2011 11:52:31 GMT

Yesterday, June 15, the National Trust for Historic Preservation announced its 2011 list of America’s 11 Most Endangered Historic Places. This year, the list included Alabama’s historic Fort Gaines, on Dauphin Island at the southern entrance of Mobile Bay.

Construction of Fort Gaines began in 1857 and it was still incomplete when Alabama militia forces seized it upon Alabama’s secession from the Union in 1861. Along with Forts Morgan and Gaines, the fort subsequently became an important part of the Confederate defenses of Mobile during the Civil War. After the Union warships forced their way into Mobile in the Battle of Mobile Bay, on August 5, 1864, however, Fort Gaines’ fate was sealed. Under naval gunfire and assaulted by a Union landing force, the fort surrendered on August 8, 1864.

In later years, the brick fort was partially modernized occupied during the Spanish-American War, World War I, and World War II. Today, it is owned by the Dauphin Island Parks and Recreation Board and remains an excellent example of a Civil War coastal fort. Within the fort original cannons can be found along with restored kitchens and other necessities in order to depict the life soldiers had in the mid 1800’s.

The National Trust placed Fort Gaines on this year’s Most Endangered Historic Places list because of the erosion affecting the Gulf of Mexico shoreline. As the land continues to disappear, the fort and its contents could be lost forever. The battlefield around the fort has already lost 400 feet to the ocean, while the area where the fort is located loses close to nine feet a year.

Other properties on this year’s list include Bear Butte, Meade County, South Dakota; Belmead-on-the-James, Powhatan County, Virginia; China Alley, Hanford, California; the Greater Chaco Landscape, New Mexico; Isaac Manchester Farm, Avella, Pennsylvania; the John Coltrane House, Dix Hills, New York; the National Soldiers Home Historic District, Milwaukee, Wisconsin; Pillsbury “A” Mill, Minneapolis, Minnesota; the Prentice Women’s Hospital, Chicago, Illinois; and, generally “Sites Imperiled by State Actions” across the United States.

This Week in Environmental History, June 20 - June 26

Wed, 22 Jun 2011 10:33:05 GMT

On June 22, 1892, President Benjamin Harrison proclaimed, “let the lands described within be reserved for the protection of the Casa Grande ruin as recommended by the Secretary of the Interior.” The brevity of Harrison's announcement hides the historical importance of his proclamation for, in protecting Coolidge, Arizona's Casa Grande ruin as a federal reservation, Harrison had created the nation's first federally protected archaeological reserve.

The significance of Casa Grande, or “Great House,” lies in its status as home to one of the largest prehistoric structures in the United States. The structure is a solid adobe, four story building with a 60 ft by 40 ft base and meter-thick walls. Although it is now covered by a large metal ramada designed by Frederick Law Olmsted Jr. in order to prevent further weathering, many of the house’s intricate details can be viewed from the outside. The house is similar to any modern home complete with wooden support beams, stairways, and windows. Some believe that the Casa Grande was used observatory because the windows are correlated with the positions of the sun and moon at specific times and its four walls are all facing one of the four cardinal directions.

The Hohokam or Sonaran Desert people, as they are also called, may have constructed Casa Grande as early as 1350 A.D. They likely abandoned Casa Grande in 1450 A.D. The first to visit after they left was Father Eusebio Francisco Kino. He described the building in 1694 and it was then likely in the same condition as it is now. In the modern era, however, the ruins became more susceptible to damage with increased visitation. Vandalism and looting further harmed the building, thus raising concerns for the preservation of this historical landmark.

Declared a National Monument in 1918, Casa Grande Ruins National Monument today continues its mission of preserving and protecting the ruins while educating visitors as to the Native American history and heritage that the site represents. -- Danica Grosko

Summary of the AEMC June 24 Meeting

Wed, 29 Jun 2011 17:00:10 GMT

On June 24, the Alabama Environmental Management Commission met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the June 24th AEMC meeting.

This Week in Environmental History (July 4 - 10)

Thu, 07 Jul 2011 08:30:20 GMT

President Richard Nixon Creates U.S. Environmental Protection Agency

On July 9, 1970, President Richard Nixon submitted Reorganization Plan. No. 3 to Congress, laying the foundation for the creation of the Environmental Protection Agency (“EPA”). In this Executive Order, the President emphasized the need for a greater understanding of the increasing contamination of America’s air and water supply. Through the EPA, the President wanted to combine the strengths of different, individual agencies to form an organization that could respond to environmental obstacles with unprecedented attention and coordination of skill. As described in Reorganization Plan No. 3, the President envisioned the primary purposes of the EPA would be: to establish and enforce environmental standards and regulations, to perform environmental research, to assist others in pollution prevention, and to assist the Council on Environmental Quality in providing suggestions to the President about additional environmental protections.

Reorganization Plan No. 3 prompted Congressional hearings on the EPA, which were conducted in July and August of 1970. After receiving Congressional support, the Environmental Protection Agency officially opened its doors in Washington D.C. on December 2, 1970. The EPA absorbed specific responsibilities previously handled by the Department of Interior, Department of Agriculture, the Department of Health, Education, and Welfare, the Atomic Energy Commission, Federal Radiation Council, and Council on Environmental Quality. President Nixon nominated William Ruckelhaus to be the first Administrator of the EPA, and the Senate subsequently confirmed Ruckelhaus’ nomination. Presently, Lisa P. Jackson is the current EPA Administrator.

Since its inception, the EPA has faced issues ranging from untreated sewage and supersonic transport to hazardous waste and radiation pollution. The EPA has grown to consist of 17,000 employees scattered throughout offices all over the United States. While promoting environmental research and education, the EPA presently serves as a regulatory agency, continually enforcing national environmental standards. -- Posted by Maurine Evans

34 Senators Urge Obama EPA to Rethink Implementing New Ozone Standards

Thu, 28 Jul 2011 15:28:44 GMT

Senator Jeff Sessions of Alabama, along with 33 other U.S. Senators, sent a letter this week to EPA Administrator Lisa Jackson, urging EPA to not finalize its proposed heightened air quality standards for ground level ozone. The Bush Administration EPA finalized new ozone standards in 2008 and this revision would come only three years into the statutory five-year review cycle for the National Ambient Air Quality Standards (NAAQS). The new NAAQS restrictions may cost up to $90 billion dollars annually according to EPA estimates.

The 34 Senators argue that the heightened restrictions will have a devastating effect on many states’ economies, as many states and local air agencies are already facing strained fiscal situations and having difficulty meeting current obligations. The Senators believe economic growth may be slowed as industries are forced to curtail development plans in order to comply with the new standards. The new standards will impose higher costs on the manufacturing, energy, industrial, and transportation industries. Infrastructure investment will be delayed as businesses attempt to comply with the new standards.

In addition to slowing economic growth and imposing higher cost on governments and industries already suffering from poor economic circumstances, the regulations will force employers to terminate tens of thousands of jobs. In order to avoid damaging the fragile economy, the Senators' letter asked the EPA to cancel implementing new NAAQS standards until the statutory review of ozone restrictions is due in 2013.

Click here to read the letter.

Summary of the AEMC August 19 Meeting

Wed, 24 Aug 2011 12:48:31 GMT

On August 19th, the Alabama Environmental Management Commission ("AEMC") met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the August 19th AEMC meeting.

Fish & Wildlife Grant Money Comes to Georgia and Florida

Mon, 19 Sep 2011 16:33:25 GMT

In late August, Secretary of the Interior Ken Salazar announced that $53 million in federal grants would be distributed among 17 states for their efforts towards building conservation partnerships with private landowners, conservation groups, and other agencies in order to protect federally-threatened and endangered species. The Endangered Species Act permits the U.S. Fish and Wildlife Service’s Cooperative Endangered Species Conservation Fund (CESF) to award competitive grants to the states so that they may engage in creative solutions and habitat acquisition for voluntary species conservation and recovery. This partnership with the states enables the U.S. Fish and Wildlife Service to use more cost-effective resources, such as voluntary conservation efforts by private landowners, to benefit federally protected species. The CESF will provide the funding through three different federal programs that were together designed to promote these creative partnerships and voluntary conservation efforts, including $28.6 million from the Habitat Conservation Plan Land Acquisition Grants Program, $10.7 million from the Habitat Conservation Planning Assistance Program, and $14 million through the Recovery Land Acquisitions Grant Program.

Georgia and Florida are two of the states that were awarded grants through the CESF. Florida’s grant totaled over $6 million from the three different CESF grant sources, and will go towards multiple conservation efforts. One project is the acquisition of up to 20 acres of habitat used by the Perdido Key beach mouse, a mouse that exists only on Perdido Key. This habitat area fronts the Gulf-coast, and acquiring the land will help ensure a continuous area of protection for the mouse between other service areas. Florida will also apply grant money towards projects like the acquisition of Summer Haven and Porpoise Point Beach Lots in St. Johns County. These vacant lots account for nearly eight acres of land needed to protect the Anastasia Island beach mouse habitat, as well as beaches used by nesting loggerhead, Kemp’s ridley, leatherback, green, and hawksbill sea turtles. Other projects include the protection of scrub habitats for the Florida scrub-jay and the eastern indigo snake, and the acquisition of a timberland habitat to benefit several plant species.

Additionally, Georgia received over $650,000 to enable the acquisition of 265 acres of the Etowah River Basin. Acquiring the lands will help maintain contiguous buffers along Raccoon Creek and other tributaries in an effort to protect the Etowah darter, an endangered species, and the Cherokee darter, a threatened species. The property will be operated as a State Wildlife Management Area.

Fish and Wildlife Service Announces Finding on Petition to List 374 Rare Species

Wed, 28 Sep 2011 13:25:05 GMT

Yesterday, the U.S. Fish and Wildlife Service (FWS) announced a partial 90-day finding on a petition to list 404 rare, aquatic-dependent species found in twelve southeastern states as either endangered or threatened under the Endangered Species Act of 1973. Of the 404 species that the petition wanted to protect, FWS concluded that 374 had the potential to satisfy listing requirements as either threatened or endangered. The 404 species included 15 amphibians, 6 amphipods, 18 beetles, 3 birds, 4 butterflies, 9 caddisflies, 83 crayfish, 14 dragonflies, 48 fish, 1 springfly, 1 fairy shrimp, 2 isopods, 4 mammals, 1 moth, 48 mussels, 6 non-vascular plants, 13 reptiles, 44 snails, 8 stoneflies, and 76 vascular plants.

FWS found that the petition—submitted by the Center for Biological Diversity, Alabama Rivers Alliance, Tennessee Forests Council, Gulf Restoration Network, and others—had enough information to warrant taking the next step in the listing process by initiating and conducting a status review for the species. A status review is required after FWS makes a 90-day finding for any species, and it begins a 12-month review during which time FWS will seek out data and information about the 374 species from a cross section of interested parties, including governmental agencies, Native American tribes, the scientific community, and industries. However, some speculate that it may take several years for FWS to decide whether the list the 374 species, since they must first list 251 species pursuant to a settlement agreement between FWS and WildEarth Guardians.

The South is well-known for its diverse freshwater species, but according to FWS the South’s freshwater habitats are threatened by destruction and overuse because of dredging and channelization, wetland loss, residential and industrial development and human population growth, recreation, logging, and agriculture activities. Other factors that FWS considers threatening the 374 species include disease and overuse for scientific, commercial, and recreational purposes. Classifying the species as either threatened or endangered would afford them greater protection under the Endangered Species Act.

Click here for the Federal Register notice.

Report Criticizes EPA’s Greenhouse Gas Endangerment Finding Peer Review Procedures

Wed, 26 Oct 2011 18:04:50 GMT

On September 26, the Office of Inspector General released a report criticizing EPA for the procedures it used in developing and reviewing the scientific data which support its Greenhouse Gas Endangerment Finding. The OIG Report, which was requested in April 2010 by the Ranking Member on the Committee on Environment and Public Works, Senator James Inhofe (R-OK), found that the technical support document (TSD) summarizing the science behind EPA’s endangerment finding should have followed the Office of Management and Budget’s (OMB’s) peer review requirements for “highly influential scientific assessments” (HISA) as well as additional procedures. The report does not address the accuracy of the science relied upon or whether it supported the conclusions of the endangerment finding.

The OIG determined that EPA’s TSD qualified as a HISA and was therefore subject to several additional federal requirements which were not followed by EPA. EPA had determined that because the TSD merely summarizes the conclusions and findings of peer-reviewed scientific assessments conducted by other organizations, it was not itself a HISA and therefore not subject to the heightened requirements. EPA further claims that the Administrator based the endangerment finding on these other assessments which do satisfy peer review requirements, rather than the TSD itself. However, the OIG disagreed, finding that by summarizing and synthesizing existing findings and conclusions from these other organizations, EPA had “implicitly and explicitly weighed the strength of the available science by its choices of information, data, studies, and conclusions included in and excluded from the TSD.” According to the OIG, this added layer of evaluation makes the TSD itself a HISA which called for a more thorough review.

The report’s recommendations to EPA include revising its internal policies to reflect the OMB’s peer review requirements for HISAs and to begin stating in its proposed and final rules whether or not the action is supported by a HISA. EPA has 90 days to respond to the report and has stated that it will address the OIG’s recommendations.

Click here to read the OIG's report.

EPA Proposes to Redesignate Birmingham Area as Attainment for 24-Hour and Annual Fine Particulate Matter Standards

Thu, 10 Nov 2011 11:45:29 GMT

Air quality in Birmingham is improving. EPA is proposing to redesignate the Birmingham area as “attainment”—i.e., meeting the standard—for the 1997 Annual fine particulate matter (PM_2.5) National Ambient Air Quality Standards (NAAQS) and the 2006 24-hour PM_2.5NAAQS.

The Birmingham 1997 Annual and the 2006 24-hour PM_2.5nonattainment areas are both comprised of Jefferson and Shelby Counties in their entireties and a portion of Walker County. The area was originally designated as “nonattainment”—i.e., not meeting the standard—for the 1997 Annual NAAQS in 2005 based on air quality data for 2001–2003 and for the 2006 24-hour NAAQS in 2009 based on air quality data for 2006–2008. Last year, the Alabama Department of Environmental Management (ADEM) submitted a request for EPA to redesignate the Birmingham PM_2.5nonattainment area to attainment for the 1997 Annual PM_2.5 National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the area.

EPA is proposing to approve the redesignation requests for the Birmingham area, along with related revisions to Alabama’s SIP, including Alabama’s 2009 emissions inventory for the Area and Alabama’s plan for maintaining attainment of the PM_2.5 standards in the area.

To read the redesignation proposal for the annual standard, click here.

To read the redesignation proposal for the 24-hour standard, click here.

House Passes REINS Act

Wed, 07 Dec 2011 17:06:35 GMT

The U.S. House of Representatives has approved H.R. 10: the “Regulations from the Executive in Need of Scrutiny Act” (“REINS Act”). The REINS Act would amend current procedures for congressional review of agency rulemaking, 5 U.S.C. §§ 801-808, by requiring that “major rules” issued by executive branch agencies would have no force or effect unless a congressional “joint resolution of approval” is first enacted into law. The REINS Act defines the term “major rule” broadly to includes any rule that (1) has an annual effect on the economy of $100,000,000 or more, (2) causes a major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions, or (3) results in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of American enterprises to compete with foreign companies in domestic and export markets.

Under current federal law—the Congressional Review Act (“CRA”)—a major rule will automatically come into effect unless Congress passes a “joint resolution of disapproval” during a statutorily prescribed notice period, a resolution any President is almost certain to veto. The REINS Act thus shifts the de facto authority in major agency rulemaking from the executive branch back to Congress. The bill will now be sent to the Senate for further consideration. President Obama has already threatened to veto the act.

Summary of December 9th AEMC Meeting

Mon, 12 Dec 2011 16:48:41 GMT

On December 9th, the Alabama Environmental Management Commission ("AEMC") met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the December 9th AEMC meeting.

Deepwater Horizon Natural Resource Trustees Release Draft Early Restoration Plan

Fri, 16 Dec 2011 13:45:00 GMT

On December 14, 2011, the Deepwater Horizon Natural Resource Damage Assessment (NRDA) Trustees (Trustees) released the Deepwater Horizon Draft Phase I Early Restoration Plan & Environmental Assessment (DERP/EA) for formal public comment. It is the first in an anticipated series of plans to begin restoration of the Gulf of Mexico to compensate for natural resource injuries, including the loss of human use of Gulf resources, from the Deepwater Horizon Oil Spill.

The DERP/EA describes the initial projects proposed to receive funding from the $1 billion Early Restoration agreement announced by the Trustees and BP on April 21, 2011, called the Framework Agreement. The Trustees will hold 12 public meetings in January and February 2012 throughout Gulf Coast communities and in Washington, D.C., to solicit formal public comment on the DERP/EA.

The DERP/EA describes eight proposed projects for the initial round of Early Restoration, two each in Alabama, Florida, Louisiana, and Mississippi. These projects reflect the ideas and input received by the Trustees through project solicitation and outreach efforts. The proposed projects include shoreline marsh creation, coastal dune habitat restoration, nearshore artificial reef creation, oyster cultch restoration, and construction of boat ramp facilities. The total estimated cost of the proposed initial suite of projects is more than $57 million.

Teri Wyly, Bradley Ennis, and Chris Carron, environmental attorneys in Balch & Bingham's Gulfport office, are currently serving as outside counsel to the Mississippi trustee for the Deepwater Horizon oil spill NRDA (Mississippi Department of Environmental Quality).

Visit www.gulfspillrestoration.noaa.gov or www.mdeqnrda.com to view the DERP/EA, access public meeting details, and view additional details of the proposed Early Restoration projects and ways to submit comments. The public comment period will end February 14, 2012.

Tuscaloosa Tree Planting in Memory of Tripp Head

Thu, 09 Feb 2012 09:19:00 GMT

On the morning of January 28, 2012, 50 law students, lawyers, and friends gathered in Tuscaloosa’s Rosedale Park, which was devastated by last April’s tornado, to plant trees in memory of Balch & Bingham partner Tripp Head.

The ABA Section of Environment, Energy, and Resources (SEER) traditionally gives its Chair a gift in honor of his year of service. Steve McKinney, head of Balch and Bingham’s Environmental and Natural Resources Section, is SEER’s Immediate Past Chair, having served as Chair during 2010–2011. In light of the devastation in Tuscaloosa and the inherent value of connecting environmental law students with environmental lawyers, Steve asked the SEER leadership team at the end of his year as Chair to make contributions to the University of Alabama School of Law Environmental Law Society to finance a tree-planting project. The response was quite generous, providing 10 large swamp chestnut trees to replace trees in Rosedale Park that were lost in the tornado.

The UA Environmental Law Society worked closely with the City of Tuscaloosa and its Park and Recreation Authority to coordinate the tree planting. With the park officials’ permission, a granite memorial to Tripp Head was installed under one of the newly planted trees. Tripp was a member of Balch & Bingham’s Environmental and Natural Resources Section and an excellent attorney. The memorial will serve as a permanent reminder of his love of the outdoors and our love for him. It reads: Trees Planted in Memory of Thomas R. "Tripp" Head, III, Lawyer, Outdoorsman, Husband, Father & Friend, 1970 - 2011.

Students, lawyers, and others participating in the tree planting gathered first at UA Law School, where Evelyn McKinney, the school’s student ABA representative, explained how the project was conceived and what it would entail. The group then proceeded to Rosedale Park and got to work, filling in the pre-dug holes for the trees, adding mulch, and applying fertilizer. The granite memorial to Tripp was installed beneath one of the new trees. Steve McKinney spoke briefly, acknowledging SEER’s generosity and thanking the tree-planting participants, the Tuscaloosa park officials, the UA Environmental Law Society, and the Head Family for their involvement in this worthwhile project.

Evelyn McKinney addressing participants outside UA Law School

Participants gathered outside UA Law School before heading to Rosedale Park

Digging in!

Hard at work in Rosedale Park

WVUA news team covering the tree planting

Installation of the memorial to Tripp Head

Tree-planting participants gathered around memorial tree

Steve McKinney addressing participants

The Head Family

Memorial stone

To read an article about the tree planting that was published in the University of Alabama newspaper The Crimson White, click here.

A link to video of WVUA's story on the tree-planting will be posted here when available.

2012 Nationwide Permits Published in Today's Federal Register

Tue, 21 Feb 2012 12:50:17 GMT

According to the notice, activities authorized by the current NWPs issued on March 12, 2007, that have commenced or are under contract to commence by March 18, 2012, will have until March 18, 2013, to complete the activity under the terms and conditions of the current NWPs. Projects requiring coverage after March 19 would need to get pre-construction notification in, as needed, as early as possible.

Surface coal mining activities that were authorized by the 2007 NWP 21 may be reauthorized without applying the new limits imposed on NWP 21, provided the permittee submits a written request for reauthorization to the district engineer by February 1, 2013, and the district engineer determines that the on-going activity will result in minimal adverse effects on the aquatic environment. NWP 21 has been reissued with a 1/2-acre limit, including a 300 linear foot limit for the loss of stream bed, and a prohibition against valley fills.

Of the 48 permits from 2007 being reissued, 23 are being reissued without change. Notification requirements have been revised for several permits (20 NWPs require pre-construction notification for all activities, and 15 NWPs require notification in certain circumstances). Impact limits have also been revised for several permits.

The two new NWPs support the Administration's initiatives on renewable energy by providing a mechanism for quickly evaluating land-based (NWP 51) and water-based (NWP 52) renewable energy proposals. The Corps is not reissuing NWP 47, which authorized activities in waters and wetlands associated with time sensitive inspections and repairs of pipelines, since this NWP was issued in reliance upon a reporting tool that was not fully developed by the U.S. Department of Transportation. The new general conditions include GC 19- Migratory Bird and Bald and Golden Eagle Permits; GC 21- Discovery of Previously Unknown Remains and Artifacts; and GC 24- Safety of Impoundment Structures. Three new definitions were added for "direct effects," "high tide line," and "indirect effects." In addition, the definition of "single and complete project" was split into two definitions to clarify the use of the term "single and complete project" for linear and non-linear projects.

U.S. Supreme Court Rules in Favor of PPL Montana

Wed, 22 Feb 2012 16:32:00 GMT

In a significant decision for hydropower -- and a case in which both sides cited accounts of the Lewis and Clark expedition up the Missouri River -- the U.S. Supreme Court ruled in favor of power company PPL Montana and unanimously overturned a decision of the Montana Supreme Court that had granted the State of Montana ownership of riverbeds underlying company-owned hydroelectric dams.

The State of Montana had argued that the use of a Montana riverbed for a hydropower project constituted use of state lands and that PPL Montana, the hydropower operator, owed the State "rent" of $41 million for 2000 through 2007. The U.S. Supreme Court unanimously rejected the argument, stating that under the equal-footing doctrine (pursuant to which a state, upon its date of statehood, gains title to the beds of then-navigable waters within its borders and may allocate and govern those lands according to state law subject only to the United States' power to control such waters for purposes of commercial navigation), the riverbeds in question were not necessarily state-owned and subject to rent. Writing for the Court, Justice Anthony Kennedy explained that the Montana Supreme Court's decision was based on an incorrect legal understanding of the U.S. Supreme Court's rules of navigability and ownership.

To read the slip opinion, click here.

Summary of February 24th AEMC Meeting

Tue, 28 Feb 2012 14:00:44 GMT

On February 24, 2012, the Alabama Environmental Management Commission ("AEMC") met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the February 24th AEMC meeting.

EPA Releases New Web Tool Allowing Public Access to Water Pollution Data

Tue, 06 Mar 2012 14:23:32 GMT

On January 25, 2012, EPA announced the launch of a new web tool, the Discharge Monitoring Report (DMR) Pollutant Loading Tool. This online tool allows the public to easily search and identify the amount, type, and location of wastewater pollutant discharges, as well as the identity of the discharger. The site can be accessed here.

Summary of April 20th AEMC Meeting

Mon, 23 Apr 2012 08:42:00 GMT

On April 20, 2012, the Alabama Environmental Management Commission ("AEMC") met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the April 20th AEMC meeting.

Sale of Oil and Gas Rights in the Talladega and Conecuh National Forests

Wed, 02 May 2012 09:54:58 GMT

The U.S. Bureau of Land Management, a Division of the U.S. Department of the Interior, recently announced its intention to auction oil and gas rights on June 14, 2012, in the Talladega National Forest located in central and eastern Alabama, and Conecuh National Forest in south Alabama. The areas subject to leasing include approximately 43,000 acres near the Pinhoti National Recreation Trail, the Chinnabee Silent Trail, Talladega Scenic Drive, Cheaha Mountain, and Rebecca Mountain. Additionally, waterways in the sale area include tributaries to the Coosa, Cahaba, and Tallapoosa Rivers, as well as Choccolocco, Cheaha, and Shoal Creeks.

This announcement was met by strong opposition from environmental groups including the Southern Environmental Law Center (SELC), Wild South and the Natural Resources Defense Council who issued a formal protest to the BLM. Specifically, the SELC fears that sale of the natural gas and oil leases will open the region up to “fracking,” a process that they claim may compromise local groundwater and impact wildlife habitats. SELC also argued that BLM did not consider the environmental impact of the oil and gas sales, as required by the National Environmental Policy Act (NEPA).

Nevertheless, others support BLM’s decision, arguing that jobs and potential tax revenues will boost the local economy. Specifically, the infrastructure associated with the development of the gas wells will create a demand for local workers, and the state’s production privilege tax could return approximately 34% of the revenues obtained under that tax to cities and counties surrounding the wells. Further, the BLM assured critics that impact studies will be conducted as required by NEPA, and that public input will be sought throughout the process.

EPA Releases New List of Contaminants for Future Monitoring by Drinking Water Systems

Fri, 04 May 2012 13:35:10 GMT

On Wednesday, May 2, 2012, EPA released its latest list of 30 contaminants to be monitored between 2013 and 2015 by approximately 6,000 public water systems throughout the United States. Pursuant to the 1996 amendments to the Safe Drinking Water Act, EPA is required to establish a list of up to 30 previously unregulated contaminants every five years. EPA is tasked with choosing contaminants that do not have existing health-based standards, but that have previously been suspected to be present in drinking water. Notable contaminants included in this latest list are the chemicals total chromium and hexavalent chromium (or chromium-6), as well as two viruses—enterovirus and norovirus.

The results of the two-year monitoring will provide EPA with scientifically valid data revealing the frequency and levels at which these contaminants are found in drinking water systems across the United States and the number of individuals potentially being exposed to these contaminants. EPA has committed $20 million to subsidize the required monitoring, most of which will be dedicated to assist small drinking water systems. In addition, all large community and non-transient non-community water systems serving more than 10,000 people are required to monitor these 30 contaminants.

For more information, EPA’s Federal Register notice is available here.

On May 8, 2012, EPA published a notice in the Federal Register requesting nominations of chemical and microbial contaminants for possible inclusion in the fourth drinking water Contaminant Candidate List. Nominations must be submitted to the agency by June 22, 2012. More information is available here.

Georgia Environmental Protection Division Proposes New Requirements for Landfills

Mon, 07 May 2012 13:22:51 GMT

The Environmental Protection Division (EPD) of the Georgia Department of Natural Resources (DNR) has proposed amendments to the Georgia Rules for “Solid Waste Management,” Chapter 391-3-4.

Rule 391-3-4-.06(3)(c), “Inert Waste Landfill Operations,” is being amended to require that all new inert waste landfills obtain a full solid waste handling permit to operate. It also provides for an eighteen (18) month transition period for existing inert waste landfills to come into compliance with the new permitting requirements or close under the current inert waste landfill permit by rule conditions. Rule 391-3-4-.07(4)(c), “Inert Waste Landfill Facilities,” is a new rule outlining design and operational standards that must be met before an inert waste landfill can obtain a solid waste handling permit for construction and operation.

A public hearing will be held on June 7, 2012, and written comments are due to DNR by June 21, 2012.

To view the notice of proposed amendments and other documents available for public inspection, click here.

EPA Releases Draft Guidance for Diesel Injection in Fracking

Wed, 09 May 2012 11:14:17 GMT

On Friday, May 4, 2012, EPA released its draft guidance for permitting the underground injection of fluids as part of oil- and gas-related hydraulic fracturing using diesel fuels under the Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) Program.

According to the prepublication Federal Register notice, EPA’s goal is “to provide greater regulatory clarity and certainty to the industry, which will in turn improve compliance with the SDWA requirements and strengthen environmental protections consistent with existing law.” For instance, the draft guidance includes EPA’s interpretation that oil and gas operations using diesel fuel as a hydraulic fracturing fluid are subject to UIC Class II requirements pursuant to the Energy Policy Act of 2005. Accordingly, owners and operators must obtain a UIC permit before such injection begins. Although it does not directly address state UIC programs, EPA believes that its recommendations may be utilized by state permit writers.

The federal guidance arrives as the Vermont legislature passes the first statewide ban on hydraulic fracturing, despite the fact that no such operations are presently taking place in the State.

EPA will open a 60-day public comment period upon publication in the Federal Register to allow for stakeholder input.

Environmental Section Attorneys’ Recent Publications

Wed, 23 May 2012 14:06:00 GMT

Rich Glaze and Gretchen Frizzell have recently authored articles appearing in national Environmental Law publications.

Rich Glaze wrote "Rapanos Guidance III: 'Waters' Revisited," which appeared in the Environmental Law Institute's Environmental Law Reporter in February 2012. The article analyzes draft guidance issued jointly by EPA and the U.S. Army Corps of Engineers regarding interpretation of the phrase “waters of the United States” under the Clean Water Act, which directly impacts determinations of Clean Water Act jurisdiction. Click here to read the article.

Gretchen Frizzell wrote "Sunshine! The New www.FOIA.gov," which appeared in the January/February 2012 issue of Trends, a publication of the American Bar Association Section of Environment, Energy, and Resources (ABA SEER). The article explores a new Department of Justice website about the Freedom of Information Act, how federal agencies handle FOIA requests, and related topics. The article as it appeared in Trends can be found here, and ABA SEER members can acccess an electronic version of the article here. A longer version of the article also appeared in the Spring 2012 issue of Administrative and Regulatory Law News, a publication of the ABA Section of Administrative Law and Regulatory Practice. Click here to read that version.

FERC to Advise EPA on Emissions Rules With Respect to Reliability

Fri, 25 May 2012 13:13:37 GMT

The Federal Energy Regulatory Commission (FERC) will advise EPA in its implementation of new emissions regulations for power plants by monitoring the rules’ impact on the electrical grid as new standards are phased in.

Specifically, FERC will assist EPA in handling requests from plant operators seeking additional time to comply with the new Mercury and Air Toxics Standards (MATS). The MATS rule requires that coal- and oil-fired electric generating units larger than 25 megawatts dramatically reduce their emissions of hazardous air pollutants like mercury, arsenic, and chromium over the next three years. Certain sources will be eligible for a one-year extension, and some will be allowed to apply for an administrative order permitting them to operate in noncompliance for another year if bringing them offline would affect grid reliability.

FERC’s advisory role will involve helping EPA determine how to handle requests from plants in the latter group. FERC’s Office of Electric Reliability will review those requests and determine whether MATS compliance could result in a violation of FERC’s reliability standards. Plant operators will have the opportunity to submit comments on whether their units should continue operating after the MATS compliance date. FERC will also review proposals from utilities to modify tariffs to help them comply with EPA regulations.

Members of the coal industry, legislators from coal-producing states, and others predict that MATS will force many power plants to shut down, causing higher electricity rates and threatening the reliability of the electrical grid. Studies by both industry groups and the federal government indicate that anywhere between 12 and 75 gigawatts of power could shut down within the next four years. Some utility companies have already started bringing old units offline.

Click here to read FERC’s news release regarding its role in implementing the MATS rule.

This Week in Environmental History (May 28 - June 2)

Tue, 29 May 2012 15:46:29 GMT

Birth of John Fletcher Lacey, May 30, 1841

Born on May 30, 1841, John Fletcher Lacey was a conservationist, attorney and political leader. As a U.S. Congressman, he was influential in passing a number of environmental bills during the early conservationist movement. Most notably, Congressman Lacey drafted and introduced the Lacey Act of 1900 and the Antiquities Act.

A native Virginian, Lacey was born in New Martinsdale, Virginia and moved to Oskaloosa, Iowa, with his family as a teenager. After serving during the Civil War in the Union Army, Lacey passed the Iowa bar and began his career as an attorney. In the 1870’s and early 1880’s, while working as an attorney in Oskaloosa, Lacey served on the Oskaloosa City Council and in the Iowa House of Representatives. He was subsequently elected to represent Iowa’s 6^th Congressional District in the U.S. House of Representatives in 1889. Congressman Lacey served for a total of eight terms, seven of which were consecutive, until 1907. While in Congress, he served as the chairman of the Committee on Public Lands.

In 1900, Congressman Lacey drafted and introduced the Lacey Bird and Game Act of 1900. Known as the first federal conservation law, the Lacey Act prohibits and in some cases criminalizes the interstate transportation of illegally procured wild animals. Although originally enacted for animal preservation purposes, the act is primarily used today to prevent the import, export and sale of non-native animal and plant species, to include lumber and plan products. Last summer, for example, suspected Lacey Act violations led to raids of Gibson Guitar Corporation’s Nashville, Tennessee, facilities, during which certain raw woods and completed guitars were seized.

In addition to the Lacey Act of 1900, Congressman Lacey had a pivotal role in passing the Antiquities Act in 1906. As opposed to the lengthy procedure of establishing a national park, the Antiquities Act provides the President with unilateral power to quickly set aside lands of public importance. In conjunction with anthropologist Edgar Lee Hewett, Lacey drafted the act for the purposes of protecting historically significant natural and archeological sites, especially those relating to Native American culture. -- Posted by Robert Sheppard

Sixth Circuit Finds that Landowner Violated Conservation Easement

Wed, 30 May 2012 16:25:42 GMT

On May 21, 2012, the United States Court of Appeals for the Sixth Circuit upheld a district court decision finding two landowners in violation of a conservation easement because they had filled in a sinkhole on their property.

The roots of the controversy can be traced to 2001, when The Nature Conservancy sold a 100 acre farm to Larry and Marsha Sims in Garrard County, Kentucky. The farm was appraised at $260,400 without a conservation easement but was sold to the Sims for $60,084 with a conservation easement. Notably, the stated purpose of the conservation easement was "to assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation Values of the Protected Property."

In 2005, The Nature Conservancy inspected the property and found that several conditions of the conservation easement were being violated -- specifically that the filling in of a sinkhole with approximately 6,269 cubic yards of soil violated the easement's prohibition against substantial alteration of the property. Thereafter, litigation ensued in district court regarding the sinkhole, with the court facing the issue of whether the "Sims had violated the easement by filling a second sinkhole located behind their residence with soil from a pond excavated on the property." Ultimately, the district court granted summary judgment to The Nature Conservancy, finding that the easement "specifically prohibited" the substantial alteration of the property by filling in a sinkhole. See Nature Conservancy, Inc. v. Sims, No. 07-112-JMH, 2009 WL 602031, at *3 (E.D. Ky. Mar. 5, 2009).

On appeal to the Sixth Circuit, the Sims argued that the conservation easement did not expressly forbid them to fill in a sinkhole. The Sixth Circuit disagreed with the Sims, and in upholding the district court’s opinion, stated that the "district court correctly determined that the Sims violated the plain terms of the easement by filling in the sinkhole behind their residence." The court reasoned that the easement was "intended to ensure that the overall appearance and topography of the property remain substantially unchanged." Moreover, the Sixth Circuit stated that the "district court correctly reasoned that while Sections 2.5 and 3.2 [of the conservation easement] together permit minor alterations to the land, such as plowing, to allow for 'growing crops, raising and selling native plants and their seeds, grazing livestock, cutting, bailing and removing hay,' this does not justify the extensive re-grading of the sinkhole." The Sixth Circuit appeal was styled Nature Conservancy, Inc. v. Sims, Nos. 09-5634, 09-6070 and is available at 2012 WL 1813675 (6th Cir. May 21, 2012).

The Sims’ experience with The Nature Conservancy offers a cautionary reminder of the potential pitfalls (no pun intended) of burdening property with conservation easements or acquiring property so burdened. Although such easements are important tools in conservation and environmental protection, negotiating the easement at arm's length with the other party and seeking independent legal counsel are measures critical to avoiding the unanticipated restrictions and unsettled expectations that apparently befell the Sims.

This Week in Environmental History (June 4-10)

Wed, 06 Jun 2012 07:11:50 GMT

Black Hills Flood, South Dakota, June 9, 1972

June 9, 2012, will mark the 40^th anniversary of the devastating Black Hills Flood. On the night of June 9, 1972, severe rain, totaling over 15 inches within 6 hours, flooded South Dakota’s Rapid Creek and many other creeks in the area. Debris clogged Canyon Lake Dam, ultimately causing its catastrophic failure.

As a result of the dam failure, Rapid Creek rose over 13 ft in 5 hours, sending homes and cars floating down stream. Although some warning was given to local residents, the impact and scale of the flooding was unforeseen, and the flash flood warnings issued by National Weather Service (NWS) were criticized for not communicating an adequate sense of urgency. More than 30 deaths were directly related to the dam failure, and in total, the flooding caused over 230 deaths and over $160 million in property damage.

In the aftermath of the Black Hills Flood, the United States Geological Survey, together with the National Weather Service and Rapid City-Pennington County Emergency Management, implemented a flood-warning system to monitor rainfall via precipitation/streamflow-gaging stations. Today, the USGS operates about 120 streamflow-gaging stations across the United States, which provide data and analysis to states, including South Dakota, so that emergency agencies can avoid and/or mitigate the damage from events such as the Black Hills Flood. -- Posted by Katie Clements

Government Steps Up Lead Based Paint Enforcement

Mon, 11 Jun 2012 09:25:29 GMT

The U.S. Environmental Protection Agency (EPA) and Department of Housing and Urban Development (HUD) are aggressively enforcing laws regulating lead based paint in buildings. These laws apply to renovators, sellers, and lessors of housing constructed prior to 1978. Violations can result in extremely high penalties when inspectors often find multiple violations.

Housing providers. Providers of pre-1978 housing, including landlords and sellers, must:

Give to prospective buyers or tenants an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards;
Disclose known information concerning lead-based paint or lead-based paint hazards;
Provide records and reports on lead-based paint and/or lead-based paint hazards which are available to the seller or landlord;
Include an attachment to the contract or lease (or language inserted in the lease itself) which includes a “Lead Warning Statement” and confirms that the seller or landlord has complied with all notification requirements. Sellers or landlords, and agents, as well as homebuyers or tenants, must sign and date the attachment.
Sellers must provide homebuyers a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards.

Building Renovators. Renovators and remodelers are subject to the relatively new Renovation, Repair and Painting Rule (RRP Rule). This rule, issued in 2008, requires firms performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 homes, child care facilities and schools to be certified by EPA to follow lead-safe work practices. Renovators are required to provide occupants the same lead based paint information as required of housing providers. They must also manage paint dust and test paint dust for lead. The rule applies to both primary contractors and subcontractors. EPA has estimatedthat there are 394,000 companies nationwide that supply renovation services and are subject to the RRP Rule. An additional 1.2 million people are self-employed contractors who may be subject to the Rule.

Penalties. A single violation of either lead paint disclosure rule or RRP Rule can yield a penalty of $37,500. In many cases, inspectors find multiple penalties at a single renovation site and six figure penalties are not uncommon. In “egregious” cases, such as when properties are occupied by pregnant women or young children, EPA may, as a punitive measure, seek a penalty calculated to exceed the respondent’s ability to pay for the purpose of driving the respondent out of business.

State requirements. Contractors involved in regulated renovations should check on the requirements of the state where they will be working to ensure compliance with any particularized state requirements. Georgia, Alabama, Mississippi, and North Carolina are authorized by EPA to administer their own RRP Rule programs in lieu of the federal program and are the lead enforcers in these states.

Knowing violations. EPA is likely to refer violations that appear to be “knowing” to the EPA Criminal Investigation Division for prosecution. Any acts that falsify information or deceive investigators will also be referred for prosecution. Intentional false statements made to EPA or delegated state officials are typically prosecuted as felonies.

Please contact Rich Glaze for further information.

House Takes Steps to Prevent Expansion of Clean Water Act Jurisdiction

Fri, 15 Jun 2012 10:34:00 GMT

The U.S. House of Representatives has recently taken steps to prevent EPA and the Corps of Engineers from implementing a joint guidance document intended to clarify the Clean Water Act’s (“CWA”) definition of “navigable waters.” The document, which was issued in April of 2011 and is titled “EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act,’’ is touted by the agencies as an “improvement” which would increase “the number of waters identified as protected” and “aid in protecting the Nation’s public health and aquatic resources.” 76 Fed. Reg. 24,479 (May 2, 2011) (EPA-HQ-OW-2011-0409).

A significant portion of Congress apparently disagrees. Last week the House approved an energy and water development appropriations bill, H.R. 5325, on a vote of 255–165. The bill contains a rider prohibiting the Corps from using funds to implement the guidance. A separate bill, H.R. 4965, would prohibit EPA or the Corps from finalizing, implementing, or using the guidance or any substantially similar guidance. That bill was reported to the House by the Transportation and Infrastructure Committee on a bipartisan vote of 33–18.

At the heart of the CWA is a prohibition on non-permitted discharges of pollutants into ‘‘navigable waters.’’ 33 U.S.C. §§ 1311(a), 1362(12)(A). EPA and the Corps’ authority to regulate under the statute is, therefore, largely dependent on the expanse of that key term. A narrow definition limits the agencies’ reach to rivers, lakes, harbors and the like, while an expansive definition can extend their reach even to dry desert ditches. Because the Act defines “navigable waters” minimally as “waters of the United States, including the territorial seas,” id. § 1362(7), there has been predictable controversy over what exactly Congress intended to regulate. EPA and the Corps’ joint guidance purports to clarify the scope of the CWA in light of the two major Supreme Court decisions on the topic: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006). The guidance also claims, for good measure, to reflect “the best available science” and recognize “recent field implementation experience.” 76 Fed. Reg. at 24,480.

In the joint guidance, EPA and the Corps interpret the terms “navigable waters” and “waters of the United States” as covering eight extremely broad categories of waters. The first five categories are always covered by the Act. These are: (1) Traditional navigable waters; (2) Interstate waters; (3) Wetlands adjacent to either traditional navigable waters or interstate waters; (4) Non-navigable tributaries to traditional navigable waters that are relatively permanent (geographic features which contain water at least seasonally); and (5) Wetlands that directly abut relatively permanent waters. Three additional categories are covered by the Act only if the regulating agency concludes—after a fact-specific analysis—that the waters have a “significant nexus” to a traditional navigable water or interstate water. These waters are: (1) Tributaries to traditional navigable waters or interstate waters; (2) Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters, and (3) “Other waters,” including (a) those that are physically proximate to other jurisdictional waters and (b) those that are not.

Members of Congress who oppose the guidance fail to see how the definition provides any clarity to the regulated community, or limits the reach of the agencies in any meaningful way.

This Week in Environmental History

Mon, 18 Jun 2012 16:13:13 GMT

June 18, 2006: Close Vote Signals Rough Waters Ahead for IWC Moratorium on Commercial Whaling

On June 18, 2006, the International Whaling Commission (IWC) passed a nonbinding resolution criticizing the 1982 moratorium on commercial whaling. The close and critical vote on the resolution was seen as a sign of the increasing influence of the pro-whaling contingent of the IWC, led by Japan. The continued existence of the moratorium has been an important issue for both the environmental and international law communities over the past six years.

The IWC was set up under the International Convention for the Regulation of Whaling, signed on December 2, 1946 in Washington, D.C. The purpose of the Convention is to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry. The IWC reviews and revises a variety of measures governing whaling conduct throughout the world and coordinates and funds whale-related research. The member nations, of which there are currently eighty-nine, meet annually in May or June and form four primary committees—Scientific, Technical, Finance and Administration, and Conservation.

In the June 2006 meeting, conflict over the moratorium came to a head. Under the moratorium, which went into effect in 1986, countries agreed to cease commercial whaling except for in limited circumstances for aboriginal subsistence whaling and scientific research whaling. The June 18^th resolution, known as the “St. Kitts and Nevis Declaration,” was accepted by a slim margin of thirty-three positive votes to thirty-two negative votes (including the United States), with one abstention (China). It declares the “commitment to normalising the functions of the IWC,” notes that the moratorium was “clearly intended as a temporary measure [and] is no longer necessary,” and emphasizes that it is “bad precedent” to make scientific determinations for “emotional reasons.” Japan, as one of the three major whaling countries, was the key force behind the vote, recruiting small Caribbean, Pacific, and African countries to join the IWC and vote against conservation. Japan, Norway, and Iceland continue to kill large numbers of whales under the scientific and traditional practices exceptions to the moratorium, despite international condemnation.

Since 2006, the impasse has continued. In the June 2010 IWC meeting, delegates discussed a compromise proposal to lift the moratorium for ten years but impose strict controls on the limited whaling allowed. Negotiations broke down, however, and there has yet to be a resolution to the impasse. The 2012 meeting is currently being held in Panama City, Panama from June 11- July 6. -- Posted by Tiffany Rainbolt

Stinging Dissent in Ninth Circuit Endangered Species Act Case

Wed, 20 Jun 2012 16:18:00 GMT

In the strongly worded dissenting opinion of Karuk Tribe of California v. United States Forest Service, dissenters expressed their disapproval of recent Ninth Circuit decisions. Widely considered a very liberal court, the U.S. Court of Appeals for the Ninth Circuit had twenty-six cases reviewed by the Supreme Court during the October Term 2010, and 79% were reversed.

The issue before the court in Karuk was whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (ESA) before allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any “agency action” that “may affect” a listed species or its critical habitat.

Groups submit NOIs when a mining activity “might” cause resource disturbance. After the agency reviews an NOI, it determines if the activities “will likely” cause disturbance. If it “will likely” cause disturbance, a Plan must be submitted. If disturbance is not likely, the NOI is approved and no Plan is necessary. The court found that approval of an NOI is a discretionary, affirmative authorization, and thus is “agency action.”

In his dissenting opinion, Judge Milan Smith argued that “[u]ntil today, it was well-established that a regulatory agency’s ‘inaction’ is not ‘action’ that triggers the . . . interagency consultation process.” He wrote that the majority’s decision is “flout[ing] this crystal-clear and common sense precedent,” and “decisions such as this one . . . undermine the rule of law.” The dissent goes on to consider the economic ramifications of this decision, saying this decision “effectively shuts down the entire suction dredge mining industry in the states within our jurisdiction.”

Judge Smith concluded his dissent by stating, “[O]ur job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”

By Julia Barber

EPA Announces Framework to Help Local Governments Manage Stormwater Runoff and Wastewater

Tue, 26 Jun 2012 17:19:00 GMT

EPA has issued a new framework to help local governments meet their Clean Water Act obligations. The Integrated Municipal Stormwater and Wastewater Planning Approach Framework assists EPA regional offices, states, and local governments to develop voluntary storm and wastewater management plans and implement effective integrated approaches that will protect public health by reducing overflows from wastewater systems and pollution from stormwater. In developing the framework, EPA worked in close coordination with a variety of stakeholders, including publicly owned treatment works, state water permitting authorities, local governments, and nonprofit environmental groups. EPA's framework outlines new flexibility to pursue innovative, cost-saving solutions, like green infrastructure, and will help communities as they develop plans that prioritize their investments in storm and wastewater infrastructure.

For questions regarding storm water issues, please call the following Balch attorneys:

Joel Gilbert, Partner, Birmingham

Rich Glaze, Partner, Atlanta

D.C. Circuit Upholds EPA’s Endangerment Finding Regarding Greenhouse Gas Emissions

Wed, 27 Jun 2012 11:35:42 GMT

On Tuesday, the D.C. Circuit upheld the Environmental Protection Agency’s (“EPA”) finding that greenhouse gas emissions threaten human health and welfare. See Coalition for Responsible Regulation, Inc., et al. v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012). The court found that EPA’s interpretation of the Clean Air Act (“CAA”) was “unambiguously correct” and dismissed petitions for review of EPA’s greenhouse gas rules.

Background

This origin of this litigation came in 2007, when the Supreme Court ruled in Massachusetts v. EPA, 549 U.S. 497 (2007), that greenhouse gases are an “air pollutant” subject to regulation under the CAA. Following this ruling, EPA promulgated a series of greenhouse gas-related rules. These rules included:

1) EPA’s Endangerment Finding, in which EPA determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1).

2) EPA’s Tailpipe Rule, which establishes motor-vehicle emission standards for greenhouse gases.

3) EPA’s Timing Rule, which provides that major stationary emitters of greenhouse gases would be subject to PSD and Title V permitting regulations on January 2, 2011, the date the Tailpipe Rule became effective.

4) EPA’s Tailoring Rule, which provides that only the largest emitters of greenhouse gases would initially be subject to greenhouse gas permitting.

In response, a number of states and industry groups filed petitions for review of EPA’s greenhouse gas regulations, arguing that EPA misconstrued the CAA and otherwise acted arbitrarily and capriciously.

D.C. Circuit Ruling

The D.C. Circuit dismissed the petition for review of the Timing and Tailoring rules for lack of jurisdiction, and denied the remainder of the petitions. Specifically, the Court concluded as follows:

1) The Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious;

2) EPA’s interpretation of the governing CAA provisions in unambiguously correct; and

3) No petitioner has standing to challenge the Timing and Tailoring Rules.

Meet the Enformation Protection Agency (EPA)

Fri, 29 Jun 2012 16:47:05 GMT

The Freedom of Information Act (FOIA) requires federal agencies to make any record available to the public upon request unless the record qualifies for one of FOIA’s nine exemptions. The agency is required, among other things, to notify the requester of its decision to produce or withhold the requested information and any reasons for withholding. An unsatisfied requester who believes the agency improperly applied a FOIA exemption may file an administrative appeal and ultimately sue the agency in federal court. Once in litigation, the agency typically must produce a document-by-document index describing all withheld records for the court to examine to determine whether the agency’s decision was justified. FOIA even allows a federal judge to levy attorney fees against the agency if its decision to withhold records is overturned; so, agencies should have plenty of incentive to get it right the first time and to avoid provoking lawsuits by requesters.

Nonetheless, the Environmental Protection Agency (EPA) promulgated a regulation whereby it “allows” itself to withhold records without giving any meaningful explanation why. 40 C.F.R. § 2.104(h)(2)—an otherwise obscure portion of a sub-paragraph buried in EPA’s procedures for responding to FOIA requests—gives the agency virtually unfettered discretion as to when to identify and how much detail to use when identifying withheld records. When EPA makes an initial denial of a FOIA request, it must include, among other information, “a brief statement of the reason(s) for the denial, including an identification of records being withheld (individually, or if a large number of similar records are being denied, by described category), and any FOIA exemption applied.”

This may sound mundane or even pragmatic at first blush, but suppose that there are no other EPA regulations setting any standards governing the substance of an EPA FOIA request denial (there are none). Suppose further that there is no law or guidance defining how “brief” the statement may be, how many records it takes to become a “large number,” when two records are considered “similar,” or what a “described category” is (also none). So we are left with just the text of section 2.104(h)(2)—and the EPA official’s undocumented interpretation—to determine when EPA may use generic descriptions to identify the information it withholds.

The problem is best illustrated by the following (perhaps hypothetical) response to a FOIA request, which, according to section 2.104(h)(2), is satisfactory:

“EPA has decided to deny your request because the responsive records are exempt from disclosure under Exemption 5. EPA has determined that a large number of similar records are exempt and therefore has described them categorically below.

Deliberative process privileged materials: emails, notes, internal communications, briefing papers and other writings to and/or from EPA personnel discussing issues pertaining to the subject matter of your FOIA request.
Attorney Work Product Privilege: documents and other memoranda prepared by an attorney in contemplation of litigation.
Attorney-Client Privilege: documents concerning confidential communications between an attorney and his client, relating to a legal matter for which the client has sought professional advice.

Thank you for your FOIA request. Information on how to appeal this determination is attached.”

So, what exactly is the FOIA requester supposed to appeal? EPA has just rattled off the definitions of the three most well-established privileges under Exemption 5, so it is useless to argue that information fitting those descriptions is not exempt. The only valid argument is that the withheld information does not actually fit those descriptions. Unless you already know what you are looking for, that contention would require a review of the information EPA refuses to share with you.

EPA established section 2.104(h)(2) in its current form in 2002. 67 Fed. Reg. 67,303 (Nov. 5, 2002). According to EPA’s annual FOIA reports, the agency used this method to deny FOIA requests over 2,100 times over the following two years (EPA stopped including this statistic beginning with the 2005 report). At that rate, this practice has likely affected more than 10,000 FOIA requests over the last decade but has apparently never been challenged in federal court.

For more information on EPA’s administration of FOIA, click here.

President Obama Signs RESTORE Act

Fri, 06 Jul 2012 19:46:00 GMT

Today, President Barack Obama signed into law the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (the “RESTORE Act”). The RESTORE Act establishes the Gulf Coast Restoration Trust Fund (the “Trust Fund”), which will consist of 80% of all administrative and civil penalties, pursuant to a court order, negotiated settlement, or other instrument in compliance with the Clean Water Act, paid for by responsible parties after the date of enactment of the Act in connection with the Deepwater Horizon Oil Spill in the Gulf of Mexico (the “Oil Spill”). The bipartisan Act could allow the Gulf Coast states—Mississippi, Alabama, Louisiana, Florida, and Texas—to collect several billions of dollars in fines, depending on how a federal court rules on the responsible parties’ liability. Under the Clean Water Act, the responsible parties face between $5.4 billion to $21.1 billion in penalties based on the estimated 5 million barrels of oil released during the Oil Spill.

Pursuant to the RESTORE Act, the Trust Fund shall be allocated as follows:

· 35% in equal parts to Alabama, Florida, Louisiana, Mississippi, and Texas for ecological and economic restoration (“Gulf Coast States”)

· 30% to the Gulf Coast Ecosystem Restoration Council (the “Council”) to carry out the Comprehensive Plan

· 30% to Gulf Coast States pursuant to Oil Spill Restoration Impact Allocation formula

· 2.5% to carry out the Gulf Coast Ecosystem Restoration Science, Observation, Monitoring, and Technology Program (the “Program”)

· 2.5% in equal shares to the Gulf Coast States for grants to establish centers of excellence to conduct research on the Gulf Coast region

Balch & Bingham’s summary of the RESTORE Act can be found here.

Teri Wyly, Chris Carron, and Bradley Ennis represent the State of Mississippi in its Natural Resource Damage Assessment resulting from the Oil Spill.

ADEM Budget Cuts Could Impact Agency’s Ability to Issue NPDES Permits

Mon, 16 Jul 2012 16:15:00 GMT

Alabama Department of Environmental Management (ADEM) Director Lance LeFleur made clear at the last meeting of the Alabama Environmental Management Commission that ADEM could lose its ability to fund water pollution permits and implement other aspects of the state’s water regulatory programs. This announcement comes after several years of budget cuts to ADEM programs have caused ADEM to make significant cuts in its operations while still maintaining nationally-ranked environmental programs. In fact, ADEM has experienced a 57% decrease in state-provided funding since 2008. If ADEM is unable to fund its state water-permitting programs, then EPA Region 4 in Atlanta will take over the permitting process and will issue permits in place of ADEM. This is significant, because ADEM could lose the majority of its control over the permitting program.

In order to address the funding deficit, Director LeFleur stated that ADEM will be developing a proposal over the next few months to raise permit fees by as much as 50%. LeFleur said that he anticipates presenting the proposal to the Alabama Environmental Management Commission for approval sometime next year.

ADEM Proposes New Cahaba River Siltation TMDL

Fri, 20 Jul 2012 14:55:45 GMT

On July 15, 2012, the Alabama Department of Environmental Management (ADEM) issued its Draft Total Maximum Daily Load for Siltation and Habitat Alteration in the Upper Cahaba River Watershed (TMDL), a copy of which is available here. Comments on the draft TMDL may be submitted to ADEM on or before August 14, 2012.

As background, a TMDL is the total amount of a pollutant load that can be assimilated by the receiving water while still achieving applicable water quality criteria. The draft TMDL states that “[e]xcessive sedimentation has been one of the primary factors in habitat degradation” for the Upper Cahaba River Watershed. The Upper Cahaba River Watershed is comprised of approximately 1,026 square miles in parts of St. Clair, Jefferson, Shelby, and Bibb Counties in Alabama, as well as small fractions of Tuscaloosa and Chilton Counties. Thus, this proposed TMDL, which will reduce the overall volume of pollutants the Upper Cahaba River Watershed can receive, is expected to have a substantial impact on the construction/land development, mining, and other industries, as well as municipal separate storm sewer systems (MS4s) within these highly developed and urban counties.

Implementation of reductions for siltation will be sought through the NPDES permitting program and will require that all permittees meet either the concentration-based discharge limit of 45.1 mg/L and/or elevated BMP plans that correspond to a 53% reduction in siltation from the site.

Balch & Bingham LLP has already commenced a thorough review of the draft TMDL. Should you have any questions, please feel free to contact Joel Gilbert or Tom DeLawrence.

Mississippi Adopts 2012 Section 303(d) List

Fri, 27 Jul 2012 09:22:58 GMT

The Mississippi Commission on Environmental Quality has adopted the 2012 Clean Water Act Section 303(d) list recommended by the Mississippi Department of Environmental Quality (MDEQ) staff. In accordance with the Clean Water Act, the revised list has been sent to the Environmental Protection Agency for approval. Section 303(d) of the Clean Water Act and its implementing federal regulations require the state to identify those waters for which recent monitoring and assessment have found pollutant specific impairment and for which total maximum daily loads (TMDLs) are not yet completed. The state establishes a priority ranking for impaired waters taking into account the severity of the pollution and the designated uses to be made of such waters. A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still safely meet water quality standards.

The revised 2012 list includes tables showing the impaired water bodies in each of the state's river basins. Monitoring data assessments for 2012 were based on current site-specific monitoring data believed to accurately portray existing water quality conditions. Applicants for permits from MDEQ's Environmental Permits Division can review the revised section 303(d) list, as well as other pertinent information, here.

10th Circuit Denies Petition for Review of EPA SIP Call

Fri, 10 Aug 2012 14:32:00 GMT

The U.S. Court of Appeals for the Tenth Circuit has denied a petition for review of EPA’s decision to issue a SIP call (a call for a state to revise its Clean Air Act state implementation plan) based on the unavoidable breakdown rule, a provision in Utah’s SIP that exempts emissions during unavoidable breakdowns from compliance with emission limitations.

Pursuant to Clean Air Act sections 110(a)(2)(H) and 110(k)(5), EPA may issue a SIP call. A SIP must provide for its revision “whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard [NAAQS] which it implements or to otherwise comply with any additional requirements established under [the Clean Air Act].” 42 U.S.C. § 7410(a)(2)(H). When such a finding is made, “the Administrator shall require”—i.e., call for—“the State to revise the plan as necessary to correct such inadequacies.” Id. § 7410(k)(5). The Administrator is to notify the state of the inadequacies and may establish reasonable deadlines for the submission of plan revisions, which are not to exceed eighteen months after the date of the notice. In this case, EPA gave Utah twelve months.

EPA found Utah’s SIP substantially inadequate to attain or maintain the NAAQS or otherwise comply with the requirements of the Clean Air Act, and it called for revision of the SIP. EPA called for Utah to remove or revise the unavoidable breakdown rule on the grounds that the unavoidable breakdown rule contains provisions which are inconsistent with EPA’s interpretations regarding the appropriate treatment of malfunction events in SIPs and which render the Utah SIP substantially inadequate.

Although EPA and Utah had discussed EPA’s concerns about the unavoidable breakdown rule for years, a lawsuit filed by WildEarth Guardians in 2009 ultimately prompted the SIP call. WildEarth sued EPA, and EPA signed a consent decree that required it to issue a SIP call by February 2011.

US Magnesium challenged the SIP call in the Tenth Circuit, arguing that the administrative record did not adequately support EPA’s finding because EPA failed to provide specific facts to support it. A three-judge panel disagreed and found that EPA was within its authority to issue the SIP call and that its finding of substantial inadequacy was not arbitrary and capricious.

To read the panel’s decision, click here.

D.C. District Court Invalidates EPA Mining Guidance

Tue, 14 Aug 2012 16:27:00 GMT

On July 31, 2012, the D.C. District Court struck down EPA’s guidance memorandum entitled “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order.” Nat’l Mining Ass’n v. Jackson, 2012 WL 3090245 (D.D.C. July 31, 2012). EPA had issued an interim version of this guidance memorandum on April 1, 2010, and issued the final version on July 21, 2011. Id. at *3. In challenging the EPA guidance memorandum, the plaintiffs argued that EPA exceeded its authority under the Surface Mining Control and Reclamation Act (SMCRA) and the Clean Water Act (CWA). Id. at *1 n1. Specifically, the plaintiffs claimed that the guidance unlawfully established: (1) “region wide water quality criterion for conductivity,” (2) a process by which EPA would “work with” SMCRA permitting authorities, and (3) a requirement that “draft permits contain pre-issuance reasonable potential analysis.” Id. at *12–13.

Ultimately, the court sided with the plaintiffs. Id. at *17. With regard to SMCRA, the court found that “EPA cannot justify its incursion into the SMCRA permitting scheme by relying on its authority under the CWA—it has no such permitting authority.” Id. at *13. As for conductivity requirements, the court determined that the “Final Guidance impermissibly sets a conductivity criterion for water quality” and thus EPA has “overstepped the authority afforded it by Section 303 of the CWA.” Id. at *14. Finally, the court determined that there is no support in the CWA or 40 C.F.R. § 122.44(d)(1) for the requirement in the final guidance memorandum that “permitting authorities should not defer reasonable potential analyses until after permit issuance.” Id. at *14.

This case was another victory for the mining industry. In October 2011, the same court struck down EPA's Enhanced Coordination Process (EC Process) and Multi-Criteria Resource (MCIR) Assessment. Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34 (D.D.C. 2011). The EC Process had established a coordinated review process between the Corps of Engineers and EPA for pending section 404 permits related to certain surface mining operations in the Appalachian region, and the MCIR Assessment had established a number of factors EPA would analyze when undertaking a review of certain section 404 permits. The court, however, found that the EC Process and the MCIR Assessment were legislative rules because they “'effectively amend' the section 404 permitting process.” Id. at 49.

D.C. Circuit Vacates EPA's Cross-State Air Pollution Rule

Wed, 22 Aug 2012 09:21:21 GMT

On August 21, 2012, the United States Court of Appeals for the D.C. Circuit vacated EPA’s Cross-State Air Pollution Rule (CSAPR or “Transport Rule”) and the associated Transport Rule Federal Implementation Plans (FIP) and remanded the rulemaking to the agency. Balch & Bingham attorneys were part of the legal team that successfully challenged the rule.

In a 2-1 vote, the Court ordered the entire rule vacated and directed the agency to promulgate a rule that, unlike CSAPR, comports with the Clean Air Act (CAA). Until that time, CAIR remains in place.

The Court found that EPA exceeded its authority in two ways when promulgating CSAPR. First, under the “good neighbor” provision, EPA had the authority to require upwind states to reduce their own significant contributions to downwind states’ nonattainment. However, the Transport Rule could require upwind states to reduce emissions by more than their own significant contribution to downwind states. The CAA does not authorize EPA to require such massive additional reductions.

Second, it is the states, not EPA, that are initially granted the right to implement the reductions required by EPA under the good neighbor provision. However, the Transport Rule quantified the states’ good neighbor obligations and simultaneously set forth EPA-crafted FIPs to implement those obligations, thereby removing the states’ initial opportunity to implement required reductions. This departed from EPA’s prior consistent approach to implementing the good neighbor provision and violated the text of the CAA.

To read the D.C. Circuit’s decision, click here.

New Jersey Court Ruling Could Affect Future Interpretation of Conservation Easements

Mon, 27 Aug 2012 10:45:32 GMT

On August 9, 2012, the Superior Court of Hunterdon County, New Jersey, issued a ruling that could foreshadow the interpretation of conservation easements in the future. The Court found that a farm owner violated a deed restriction on the property by conducting certain earthmoving activities for the construction of greenhouses. New Jersey v. Quaker Valley Farms, LLC, No. 14007-08 (N.J. Sp. Ct. Hunterdon County Aug. 9, 2012). The property was sold to the defendants in 1997 with a “use” restriction for “common farmsite” activities, including, among other things, a prohibition on activities that would be detrimental to soil conservation and the continued agricultural use of the property. The deed easement, however, specifically allowed the construction of buildings for agricultural purposes. Ultimately, the court found that “the deed is clear in that no action can be taken which destroys the conservation of the extant soils” and that “[o]nce the soil was [] detrimentally impacted . . . defendants were in violation of the deed restriction.”

To read the court's decision, click here.

Several Panama City Beach Sea Turtle Nests Survive Hurricane Isaac

Wed, 05 Sep 2012 17:08:32 GMT

Sea turtle nesting season runs from May through October. Volunteers in the Panama City Beach area protect and monitor the turtle nests on the beach, including nests of loggerhead turtles, an endangered species. So far this season, 17 nests have hatched and over 1,100 hatchlings have made it to the water. The heavy rains brought from Tropical Storm Debby in June took four nests, and the high surf from Hurricane Isaac took another 10 nests. As of September 3, eight nests remained on the beach. All of the nests were seriously flooded by Isaac, but volunteers remain hopeful that at least four of the remaining nests will hatch. Over one-third of the eggs recovered from a nest flooded by Tropical Storm Debby hatched.

For more information on the status of the Panama City Beach turtle nests, click here.

States Focused on Environmental Permit Processing

Tue, 11 Sep 2012 16:25:00 GMT

The timeliness – or lack thereof – of environmental permitting has been a hot topic lately in several states. In July, the Pennsylvania Governor announced a new Permit Decision Guarantee policy that will change the way the Department of Environmental Protection (PADEP) processes permit applications. The Permit Decision Guarantee establishes a standardized review process for certain state environmental permits and guarantees that PADEP will provide a permit decision within set timeframes. Just last week, the PADEP issued a draft of the new policy and permit review deadlines for public review and comment. A full text of the draft policy is available here.

Earlier this year, the North Carolina State Auditor criticized the Department of Environment and Natural Resources (DENR) for slow permit-processing and poor permit-recordkeeping. The performance audit entitled Express Permit Processing – which sought to evaluate the effectiveness of DENR’s program to allow private-sector permittees the option of paying extra fees for expedited permit processing – found that “DENR does not have adequate procedures in place to ensure that the permit processing data . . . is complete and accurate.” However, the report concluded that the available data indicate that in Fiscal Year 2010 DENR missed its target processing time for most types of permits at least 80% of the time. The audit led to the introduction of state legislation to require DENR to track and report on the time required to process permit applications.

The State of Michigan has also passed environmental-permit-processing legislation this year imposing more stringent requirements on the Department of Environmental Quality (MDEQ). Senate Bill No. 744 imposes several obligations on MDEQ, including granting an applicant’s requests for permit processing extensions, approving or denying applications by certain deadlines, providing timely and detailed reasoning behind application denials, and devoting resources to eliminate backlog if it misses deadlines on 10% or more applications in a quarter of a fiscal year. The bill also provides that a permit application is deemed to be approved if MDEQ fails to meet any of these requirements with respect to the application.

Government Fights for BP Gross Negligence Finding

Thu, 20 Sep 2012 09:02:56 GMT

On August 13, 2012, BP Defendants filed a Motion for Final Approval of Deepwater Horizon Economic and Property Damages Settlement Statement with regard to the proposed $7.8 billion class action settlement to resolve more than 100,000 claims by individuals and businesses stemming from the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. Although the settlement does not cover governmental claims, the U.S. and the States of Alabama and Louisiana were compelled to file responses to BP’s Motion in order to address what they argue are veiled attempts for findings that would go to the heart of the claims of the government and other non-settling plaintiffs.

For example, in its Motion, BP asserts that “at any Trial, BP would establish that the Gulf is undergoing a robust recovery, further weakening claims for economic damages.” BP Motion at 69–75. By framing such statements in light of the settlement with private plaintiffs, BP is seemingly seeking to obtain findings that would “pre-judge” the ongoing work of the Natural Resource Damage Assessment under the Oil Pollution Act. In its response, Louisiana “objects to BP’s blatant misrepresentation of the significant acute and chronic natural resource damages (‘NRD’) and economic damages suffered by the State and its citizens, as well as those future, long-term damages that will continue to occur for years or decades to come.” La. Response at 2. Louisiana further argues that such misrepresentations are “based on inaccurate and irrelevant factual data and legal conclusions.” La. Response at 2.

Further, the U.S. points to BP’s assertion that its actions did not constitute gross negligence or willful misconduct, despite admissions and testimony of expert witnesses to the contrary. Should such statements amount to a “finding” by the court under Federal Rule of Civil Procedure 23(e)(2), such a finding could clearly affect the Clean Water Act (“CWA”) penalties sought by the U.S. Government for discharge of pollutants into U.S. waters. For example, should the court choose to calculate the civil penalties using a per-barrel penalty and apply the federal government’s estimate of 4.1 million barrels of oil discharged, the actual amount of penalties could potentially be as high as $17.6 billion. However, using the same assumptions, a finding that BP acted with due diligence would drastically decrease the amount of penalties to $4.5 billion. In light of the recent passage of the RESTORE Act, which would direct 80% of any civil penalties paid under the CWA resulting from the Deepwater Horizon oil spill to a variety of projects aimed at helping the Gulf recover from the resulting environmental and economic injuries, such a finding could serve as a massive blow to a region desperately trying to recover from the largest oil spill in U.S. history.

The court has scheduled a “Fairness Hearing” for November 8, 2012.

EPA Imposes Significant-New-Use Rules on 107 Chemicals

Mon, 24 Sep 2012 17:22:29 GMT

On Friday, September 21, the Environmental Protection Agency (EPA) issued a final rule imposing significant new use rules (SNURs) on 107 chemicals, pursuant to the Toxic Substances Control Act (TSCA). Specifically, the SNURs require persons that intend to manufacture, import and/or process any of the 107 chemicals at issue in such a way to be designated a significant new use under the final rule to notify EPA at least 90 days before commencing the proposed activity. EPA utilizes guidelines set by TSCA to determine what constitutes a significant new use for the 107 chemicals. The final rule provides EPA the right to review the potential environmental and health risks of any proposed new use of the chemicals at issue and prevent, or require certain protective handling requirements for, any such use that could pose an unreasonable health and/or environmental threat.

EPA has allowed these 107 chemicals to go into production already, subject to binding protective measures included in consent orders or pre-manufacturing notices filed by manufacturers. However, any such proposed use that deviates from these pre-approved protective measures constitutes a “new use” that must go through EPA’s aforementioned notification process prior to initiating any action.

The final rule is scheduled to take effect November 20, 2012. A copy of the Federal Register notice explaining the details of this rule can be found here.

EPA Proposes Revised New Source Performance Standards for Stationary Combustion Turbines

Wed, 03 Oct 2012 10:21:38 GMT

The Environmental Protect Agency (EPA) is accepting comments on proposed revisions to New Source Performance Standards (NSPS) for stationary combustion turbines (40 C.F.R. Part 60 Subpart KKKK). Under the Clean Air Act, EPA is directed to implement new source performance standards for categories of sources which cause or contribute significantly to pollution which may reasonable be anticipated to endanger public health or welfare. Stationary combustion turbines are one of these source categories.

In July, 2006, EPA took final action to revise NSPS for new, modified, and reconstructed stationary combustion turbines and emissions of nitrogen oxide (NO_X) and sulfur dioxide (SO₂) associated with these sources. On September 5, 2006, the Utility Air Regulatory Group (UARG) submitted a petition for reconsideration of EPA’s proposed changes requesting that the EPA reconsider elements of the final rule, which were not included in the proposal for that rule and for which no comments were solicited. Those elements included the final input and output NSPS for new, modified, and reconstructed large natural gas-fired combustion turbines operating in the simple cycle mode; implications of specifying concentration limits at 15 percent oxygen: and the lack of an identified methodology for calculating compliance for operating periods during which several different standards apply. EPA’s proposed amendments are intended to resolve issues related to UARG’s petition.

The current proposed revisions include, but are not limited to, the following:

· Allow owners/operators of stationary combustion turbines burning by-product gas to petition the EPA for a site-specific NO_X limit.

· Maintain the current numerical NOx standards but specify that periods of start-up, shutdown, and malfunctions are now covered by the emissions standard.

· Specify that even though the definition of “stationary combustion turbine” under CFR Subpart KKKK includes ancillary equipment, only the combustion turbine engine will be considered when determining if a stationary combustion turbine is new or reconstructed.

· Exempt owners/operators of stationary combustion turbines that are complying with the SO₂ standard in either of the standards of performance for petroleum refineries from the SO₂ standards in Subpart KKKK.

· Exempt owners/operators of stationary combustion turbines that are complying with the SO₂ and NO_X standards in the municipal solid waste regulations from the SO₂ and NO_X standards for combustion turbines in Subpart KKKK.

· Amend the SO₂ standard for owners/operators of stationary combustion turbines burning low-Btu gases to be the same as the current standard for combustion turbines burning biogas (landfill gas, digester gas, etc.).

· Recognize the environmental benefit of electricity generated by combined heat and power facilities to account for the benefit of on-site generation avoiding losses from the transmission and distribution of the electricity.

· EPA is requesting comment on how to determine when a stationary combustion turbine that is overhauled offsite is reconstructed.

Comments on the proposal are due October 29, 2012. A complete copy of the proposed rule can be found here.

New Proposed Species Listing in Limestone County, Alabama

Thu, 25 Oct 2012 14:18:00 GMT

The Center for Biological Diversity and an Alabama-based biologist recently petitioned the U.S. Fish & Wildlife Service (“FWS”) to list the spring pygmy sunfish (Elassoma alabamae) as threatened under the Endangered Species Act (“ESA”). The petitioners have argued that the species, which reportedly lives only in Beaverdam Creek in Limestone County, Alabama, is imperiled due to development in Huntsville, increased local water usage, pesticide-laden storm water, unsound agricultural practices, and other run-off and sediment. To protect the species, the petitioners have identified eight miles of Beaverdam Creek and 1,617 acres of surrounding land which they believe should be designated as “critical habitat.” In response to the petition, FWS has announced a “12-month finding” which concludes that listing the fish is warranted. FWS is now soliciting information from the local and scientific communities to help it make its final determination. Comments must be received by December 3, 2012.

The proposed listing is part of FWS’s efforts to implement a court-approved, six-year work plan designed to mandate the agency’s review of over 250 species listed on the “2010 Candidate Notice of Review,” the FWS publication which lists candidates for threatened or endangered species status. See 75 Fed. Reg. 69,222 (Nov. 10, 2010); 50 C.F.R. part 17. The work plan is part of settlement with WildEarth Guardians the Center for Biological Diversity, two environmental plaintiff’s groups who regularly file petitions with FWS to list species and then sue when FWS fails to do so, capitalizing on the agency’s inability to meet the ESA’s mandatory 90 day time frame for responding to listing petitions. The work plan was approved by U.S. District Court for the District of Columbia on September 9, 2011. While the plan is intended to allow FWS to significantly reduce litigation-driven workloads and focus its resources on the listing process, critics worry that the settlement’s short time frame almost guarantees that FWS will not have sufficient time to gather and evaluate up-to-date, accurate scientific data before making its listing determinations for the 2010 canidates.

5th Circuit Vacates EPA's Disapproval of Texas SIP Provision

Tue, 30 Oct 2012 10:44:56 GMT

On October 24, 2012, the Fifth Circuit vacated EPA’s disapproval of an environmental regulation promulgated by the State of Texas as part of its Clean Air Act (CAA) state implementation plan (SIP).

Specifically, EPA disapproved section 116.911(a)(2) of Texas’s SIP, 30 Tex. Admin. Code § 116.119(a)(2), which requires owners and operators of certain electric generating facilities to demonstrate that any newly proposed pollution control methods comply with Texas’s Standard Permit for Pollution Control Projects (PCPs). EPA’s only basis for disapproving section 116.119(a)(2) was that it had previously disapproved Texas’s Standard Permit for PCPs, and therefore, this provision mandated compliance with a provision EPA had previously disapproved.

However, in a decision earlier this year, the Fifth Circuit held that EPA had no legal basis on which to disapprove Texas’s Standard Permit for PCPs, and vacated EPA’s ruling on that issue. See Luminant Generation Co., L.L.C. v. EPA (“Luminant I”), 675 F.3d 917, 921 (5th Cir. 2012). As a result of that decision, EPA informed the court that “it cannot reconcile its disapproval of section 116.911(a)(2) with this court’s holding in Luminant I,” and therefore, its disapproval of section 116.119(a)(2) must be vacated. The Fifth Circuit agreed and remanded for further proceedings consistent with Luminant I. Click here to see the Fifth Circuit’s decision.

EPA Launches NPDES General Permit Inventory

Mon, 05 Nov 2012 16:37:00 GMT

EPA recently announced the launch of its NPDES General Permit Inventory, which it describes as "allow[ing] users to search for non-stormwater NPDES general permits by permit number, permit name, state, EPA Region, date issued, date expired, or permit category. Search results display basic permit information, as well as a link to electronic permit documents when available."

The inventory was launched in September and is current as of August 30, 2012. As of that date, the database contains a total of 508 general NPDES permits, including both state- and federally-issued permits. It will be updated semi-annually.

Summary of October 19th AEMC Meeting

Mon, 22 Oct 2012 09:33:34 GMT

On October 19, 2012, the Alabama Environmental Management Commission ("AEMC") met to discuss environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the October 19th AEMC meeting.

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 09:17:00 GMT

“We anticipate that the administration will continue its ongoing efforts to curtail surface coal mining and the combustion of coal for electric generation through increased regulatory control, including regulation of greenhouse gas emissions. The administration’s efforts to limit greenhouse gas emissions will also affect other industries, many of which may never have required air permitting in the past.” – Thomas Casey, Partner, Birmingham

Stay tuned. More predictions from our attorneys to come!

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 10:29:07 GMT

“President Obama’s economic stimulus efforts in his first term resulted in increased environmental review and permitting for numerous federally funded projects. Given the President’s second term, the administration will see completion of many of these projects and the resulting public response to the efficacy of these environmental reviews and permits, creating the potential for a lively discussion on the state of NEPA.” – Melanie Jablonski, Associate, Atlanta

Stay tuned. More predictions from our attorneys to come!

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 13:24:00 GMT

“President Obama’s second term will likely see an attack on coal-fired electric utility units—from mining operations to ash disposal regulations and everything in between.” – Emily Crawford, Associate, Birmingham

Stay tuned for more predictions about the next four years.

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 14:44:44 GMT

“The continuation of the Obama administration seems unlikely to result in an increase in enforcement efforts by EPA. The ongoing budgetary constraints and the looming ‘fiscal cliff’ make enhancements of EPA’s budget unlikely, particularly for civil enforcement matters. In fact, the opposite appears to be the case, as reflected in an internal budget-related memo recently released by the EPA employees’ union, in which Larry Starfield, EPA's Deputy Assistant Administrator of the Office of Enforcement and Compliance Assurance, lists ‘Areas of Proposed Budget Adjustment for FY13.’ The memo suggests that even criminal enforcement, normally immune to budget cuts, will be required to focus its efforts on a smaller number of ‘high impact cases.’” – Rich Glaze, Partner, Atlanta

Still more prognostications to come!

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 16:19:26 GMT

“President Obama made a point to tout clean coal and push innovation of clean-coal technologies during his campaign. Nonetheless, expect EPA to be emboldened by the President’s victory and to rev-up its regulatory ‘war on coal.’ The intended result will be to make new coal units unaffordable, thereby pushing the industry towards natural gas.” – Patrick Runge, Associate, Birmingham

Stay tuned for more!

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 17:17:00 GMT

“During President Obama’s first term, the administration was proactive in its issuance of air quality regulations, such as new Maximum Achievable Control Technology (MACT) standards for hazardous air pollutants and National Ambient Air Quality Standards (NAAQS) for sulfur dioxide, nitrogen dioxide and other pollutants. In a second term, I anticipate that the administration will continue to issue draconian rules for coal plant emissions.” – Teri Wyly, Partner, Gulfport

Check back tomorrow to read more of our attorneys' expectations for the Obama Administration's second term!

Environmental Law Expectations for President Obama's 2nd Term

Fri, 09 Nov 2012 08:30:00 GMT

“How many regulatory initiatives EPA can undertake in the coming months will be directly impacted by its future budgets. EPA’s current budget is approximately $8.4 million. Prior to the election, the House proposed allocating only $7.1 million for EPA for FY2013, whereas the Senate and President recently proposed to maintain the agency’s funding at approximately current levels. With the looming fiscal cliff, and cuts expected across the board, EPA will likely have fewer resources at its disposal to carry out everything it would like and, thus, will likely be forced to prioritize its initiatives and pursue them accordingly over a greater period of time.” – Tom DeLawrence, Associate, Birmingham

Check back throughout the day for more!

Environmental Law Expectations for President Obama's 2nd Term

Fri, 09 Nov 2012 10:02:00 GMT

“EPA has proposed regulations to regulate the management and disposal of coal combustion by-products (CCBs) as either a hazardous waste or solid waste under the Resource Conservation and Recovery Act. Recent public statements of EPA indicate that before issuing final regulations, it must offer additional data for public comment, which may take a year or longer. Accordingly, EPA is not likely to issue a final rule sooner than that, but regulation under EPA’s hazardous waste authority remains a possibility.” – Steven Burns, Partner, Birmingham

Stay tuned for more environmental law expectations for the Obama Administration's second term.

Environmental Law Expectations for President Obama's 2nd Term

Fri, 09 Nov 2012 14:12:00 GMT

“Immediately upon taking office in January of 2009, President Obama pronounced sweeping changes to the Government’s FOIA policies, promoting discretionary release of information and a ‘presumption of openness.’ However, open-government advocates have been disappointed in the Administration’s lack of transparency thus far—with the President’s re-election campaign no longer looming, will Federal agencies be more committed to this policy in the next term?” – Tal Simpson, Staff Attorney, Birmingham

EPA Requests Public Input on Fracking Study

Fri, 16 Nov 2012 11:48:24 GMT

On Friday, November 9, 2012, the Environmental Protection Agency (EPA) issued a “Request for Information to Inform Hydraulic Fracturing Research Related to Drinking Water Sources” in the Federal Register. A copy of the notice is available here. Specifically, this request asks the public to submit any scientific data and literature that may inform the agency’s ongoing review of practices and technologies within the hydraulic fracturing industry. Pursuant to a request by Congress, EPA initiated its study in 2011 analyzing what effects, if any, hydraulic fracturing is having (or has the potential to have) on the water cycle—including the industry’s water acquisition needs and impact on drinking water sources. EPA expects to release a progress report on the study within the next month. In addition, the agency is tentatively scheduled to release the study for peer review and comment sometime in 2014.

With respect to the data requested, EPA specifically provides:

While EPA conducts a thorough literature search, there may be studies or other primary technical sources that are not available through the open literature. EPA would appreciate receiving information from the public to help inform current and future research and ensure a robust record of scientific information. Consistent with our commitment to using the highest quality information, EPA prefers information which has been peer reviewed. Interested persons may provide scientific analyses, studies and other pertinent scientific information. EPA will consider all submissions but will give preference to peer reviewed data and literature sources.

Contact Tom DeLawrence or Grady Moore if you have any questions or concerns regarding EPA’s request for information, especially if you and/or your company are contemplating submitting documents to the agency. Importantly, individuals and companies voluntarily providing information to EPA pursuant to this agency request may still designate these produced documents as confidential, thereby protecting them from any subsequent disclosure by EPA to third parties.

Court Vacates 404 Permit in Mississippi Wetlands Case

Fri, 07 Dec 2012 14:19:00 GMT

On November 21, 2012, the United States District Court for the Southern District of Mississippi found that the U.S. Army Corps of Engineers (“Corps”) abused its discretion and acted arbitrarily and capriciously with regard to the issuance of a Clean Water Act section 404 permit.

In June 2007, the Mississippi Department of Transportation applied for a section 404 permit to construct a north–south connector road between U.S. Highway 90 at the Port of Gulfport northward to U.S. Interstate 10. The permit authorized the filling of 162 acres of wetlands within the Turkey Creek Watershed, provided that 1,637.9 acres of wetlands be preserved and/or restored within the same watershed. Upon a Finding of No Significant Impact (“FONSI”) under the National Environmental Policy Act (“NEPA”), the Corps issued a permit for wetland fill and mitigation associated with the construction of the connector road.

The Plaintiff, Ward Properties, alleged that it owned property in the path of the connector road, as well as 1,300 acres of the required mitigation property. In its complaint, the Plaintiff contended that the Corps violated NEPA by failing to prepare an Environmental Impact Statement (“EIS”), violated the Clean Water Act by allowing the destruction of wetlands without assurance that mitigation of such wetlands could be accomplished, and that the administrative record failed to adequately address the direct, indirect, and cumulative impacts that the project and related projects will have on the environment. The Plaintiff further contended that the administrative record lacked sufficient information that the permitted mitigation was sufficient to support the issuance of a FONSI for the project because it lacked information about the property to be ultimately selected for fulfilling mitigation requirements.

U.S. District Judge Sul Ozerden granted summary judgment to the Plaintiff, stating that Corps acted arbitrarily and capriciously, and abused its discretion, in relying on outdated mitigation information in the environmental assessment to support the issuance of a FONSI. According to the opinion, the administrative record for the project was insufficient to support the permit’s mitigation requirement or the mitigated FONSI determination. Further, the Corps failed to completely analyze the environmental impacts from the project in the context of the mitigation plan included in the permit. Consequently, the FONSI did not comply with NEPA. As a result, the court vacated the permit and prohibited the Corps from issuing another section 404 permit until the Corps completes a new environmental assessment, a new FONSI, an EIS, or some other appropriate disposition.

The case is Ward Gulfport Properties LP et al. v. U.S. Army Corps of Engineers, No. 1:10-cv-0008, in the U.S. District Court for the Southern District of Mississippi. Click here to read the decision.

Corps of Engineers Extends Public Scoping Deadline for Updating ACF Water Control Manual

Thu, 13 Dec 2012 09:48:17 GMT

The U.S. Army Corps of Engineers (Corps) announced in October that it intends to revise the scope of the Environmental Impact Statement (EIS) for the Water Control Manual (WCM) updates for the Apalachicola–Chattahoochee–Flint (ACF) River Basin in Alabama, Florida, and Georgia. The scope of the EIS is being revised in light of the June 2011 decision of the U.S. Court of Appeals for the Eleventh Circuit and the June 2012 legal opinion of the Corps’ Chief Counsel finding the Corps has authority to accommodate municipal and industrial water supply from the Buford Dam/Lake Lanier project. The WCM and plans are being updated to reflect changed conditions since the last update and to consider operations for all authorized purposes, including an expanded range of water supply alternatives associated with the Buford project (e.g., current levels of water supply withdrawals and additional amounts requested by Georgia).

The deadline to submit comments regarding the scope of the EIS for the WCM update has been extended to January 14, 2013. Comments may be submitted online at http://www.sam.usace.army.mil, via e-mail at acf-wcm@usace.army.mil, or via mail at Tetra Tech, Attention: ACF-WCM, 61 Saint Joseph Street, Suite 550, Mobile, AL 36602-3521.

EPA Proposes Numeric Nutrient Criteria for Florida Waters

Thu, 20 Dec 2012 10:33:33 GMT

In response to the U.S. District Court for the Northern District of Florida’s February 18, 2012 order, the Environmental Protection Agency (EPA) is proposing a rule regarding its numeric water quality standards for nutrients in Florida. After remand from the District Court to provide further information and explanation, EPA is re-proposing the same numeric nutrient criteria for total nitrogen (TN) and total phosphorus (TP) for Florida streams not covered by EPA-approved State rulemaking. These numeric criteria vary by nutrient watershed region and span from 0.067 mg/l to 1.87 mg/l for TN and 0.06mg/L to 0.49 mg/L for TP. The proposed rule provides how the proposed numeric streams criteria will ensure the protection of the Florida’s Class I and III designated uses and explicates the use of reference sites, stream criterion magnitude and evidence of harm from exceedences of EPA’s proposed criteria in reaching these numeric nutrient criteria. In addition, the proposed rule identifies three default approaches to derive downstream protection values (DPVs) in cases when there are insufficient data to use a water quality model for any unimpaired lake for which EPA has promulgated numeric nutrient criteria. These default approaches would be applicable to streams that flow into unimpaired lakes and could also be used for streams that flow into impaired lakes.

The deadline to submit comments regarding the proposed rule is February 1, 2013, and will not be extended because of EPA’s obligation to sign a notice of final rulemaking on or before August 31, 2013, under Consent Decree. Comments may be submitted online at www.regulations.gov, via e-mail to ow-docket@epa.gov, by mail to Water Docket, U.S. Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2009- 0596 or by hand to EPA Docket Center, EPA West Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2009-0596.

For more information and the text of the proposed rule click here.

EPA Signals Intent to Consider Rule to Define Regulatory Status of Waters

Thu, 03 Jan 2013 09:46:00 GMT

In a "listing" published December 21, 2012, EPA signaled its intent to clarify which water bodies are protected under the Clean Water Act (CWA). In the wake of the Supreme Court's decisions in Rapanos v. United States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), the scope of "waters of the United States" protected under CWA programs has been an issue of "considerable debate and uncertainty."

Click here for more details regarding the potential rule. If you have questions concerning this issue, please contact Environmental Attorney Rich Glaze at rglaze@balch.com.

District Court Vacates EPA’s TMDL for Virginia Creek

Mon, 07 Jan 2013 13:06:48 GMT

On January 3, 2012, the United States District Court for the Eastern District of Virginia issued a significant environmental decision regarding stormwater. See Va. Dep't of Transp. (“VDOT”) v. EPA, No. 12-775, 2013 WL 53741 (E.D. Va. Jan. 3, 2013). The court held that stormwater is not a pollutant, and therefore, the Environmental Protection Agency (EPA) cannot regulate it using a total maximum daily load (TMDL). VDOT, 2013 WL 53741, at *5.

This case involved Accotink Creek in Fairfax County, Virginia, which is a 25-mile long tributary of the Potomac River. VDOT, 2013 WL 53741, at *1. Because Accotink Creek had been “identified as having ‘benthic impairments,’” EPA “was to set appropriate TMDLs to improve the health of the benthic community.” Id. Accordingly, EPA established a TMDL for Accotink Creek that limited stormwater to 681.8 ft³/acre-day. Id.

The Virginia Department of Transportation (VDOT) brought suit, challenging the TMDL on a number of grounds. VDOT, 2013 WL 53741, at *2. The single issue, however, before the court was whether the “Clean Water Act authorize[s] EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek.” Id. Both parties had agreed that “sediment is a pollutant, and that stormwater is not.” VDOT, 2013 WL 53741, at *1. EPA, however, had referred to “stormwater flow rate as a ‘surrogate’ for sediment.” Id.

The court evaluated EPA’s decision to issue the TMDL under the Chevron framework. VDOT, 2013 WL 53741, at *2. In determining if any statutory ambiguity exists under Chevron Step 1, the court cited 33 U.S.C. § 1313(d)(1)(C), which provides the authority for the establishment of a TMDL for pollutants identified by the Administrator. Id. The court found that this statute is not ambiguous, reasoning that “EPA is charged with establishing TMDLs for the appropriate pollutants” which does “not give them authority to regulate nonpollutants.” VDOT, 2013 WL 53741, at *3. Moreover, the court rejected EPA’s argument that the stormwater TMDL is a surrogate; the court stated that “EPA may not regulate something over which it has no statutorily granted power—annual loads or nonpollutants—as a proxy for something over which it is granted power—daily loads or pollutants.” Id. Finally, while the court stated that it need not evaluate the statute under Chevron Step 2, it found “EPA’s attempt to set TMDLs for nonpollutants” to be “an impermissible construction of the statute.” VDOT, 2013 WL 53741, at *5.

In conclusion, the court reiterated that the “language of § 1313(d)(1)(C) is clear.” Id. The Clean Water Act (CWA) authorizes EPA “to set TMDLs to regulate pollutants, and pollutants are carefully defined.” Id. Because stormwater runoff is not a pollutant, “EPA is not authorized to regulate it via TMDL.” Id.

The decision is significant. Since 1994, the issue of the scope of the CWA with respect to flows has been in question, when the State of Washington included state-promulgated flow provisions into a section 401 water quality certification. PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994). Since that time, EPA has promulgated regulations aimed at municipal separate storm sewer systems (MS4s) which state that operators of MS4s, mostly local governments, “must” use an ordinance or other regulatory mechanism to address storm water flow “to the extent allowable under state, tribal, or local law.” 40 C.F.R. § 122.34. In response, these now-questionable flow limits and prescriptions have been included as a requirement in CWA permits, and subject of CWA permit appeals and citizen suit enforcement.

Click here to read the decision.

SIP Battles Are Only Part of the War Between EPA and the States

Tue, 15 Jan 2013 09:37:02 GMT

The Clean Air Act (CAA) forces EPA and the States to dance together on design and approval of State Implementation Plans (SIPs) for attaining and maintaining the National Ambient Air Quality Standards (NAAQS). Even though Congress and the courts have said that the States call the tune and play every instrument in the SIP band, EPA insists on wearing cowboy boots to the dance and standing on top the States’ feet during every waltz. See, e.g., A Mostly Civil War Over Clean Air Act SIPs, NR&E, Volume 27, No. 1 (Summer 2012).

But the friction between EPA and States is broader and deeper than that seen at the public SIP approval dances. Tennessee Commissioner of Environment and Conservation Bob Martineau recently testified before Congress on Federal and State cooperation under the CAA and spotlighted a variety of friction points that need the lubrication of changes in policy and perhaps the law. Topics of his testimony include: (1) the process for review and revision of the NAAQS; (2) flexibility for state and regional NAAQS implementation methods and ideas; (3) EPA’s role and responsibilities in the SIP approval process; (4) wide-spread uncertainty created by EPA’s litigating posture in the NSR Enforcement Initiative; (5) the value of state and regional cap-and-trade programs compared to EPA’s regulatory and litigation initiatives; and (6) the unfairness of presently-effective allocation methods for federal CAA implementation funds. Commissioner Martineau’s testimony is available here.

EPA Releases First Batch of Lisa Jackson’s Alias Emails

Tue, 29 Jan 2013 11:09:37 GMT

On January 15, 2013, EPA released the first round of emails in response to a lawsuit filed by Competitive Enterprise Institute (CEI) over concerns that outgoing EPA Administrator Lisa Jackson was using an alias email account in the name “Richard Windsor” to conceal communications from public disclosure. The suit sought access to messages from Jackson’s alternate email account using the terms “coal,” “climate,” “endanger,” or “MACT.” So far, 2100 of Jackson’s emails from her alias email account have been released. In December 2012, EPA agreed to release up to 12,000 emails pertaining to the CEI request at a rate of 3000 documents per month.

EPA told the House Science Committee that EPA administrators have been assigned two official accounts for more than a decade, explaining that because of the large number of emails going to the public account (more than 1.5 million in 2012), the internal email account is necessary for effective management and communication between the administrator and the staff.

Attorney and senior fellow with CEI, Chris Horner, and others, including Louisiana Republican Senator David Vitter, are disappointed with the emails released so far. In addition to releasing less than the 3000 emails promised, Horner and Senator Vitter argue that EPA improperly redacted names in the released emails. Many emails redact the email address from which they came under a Freedom of Information Act (FOIA) exemption that is used only to protect personal privacy, which, Senator Vitter argues, wouldn’t apply to Jackson’s work email address. EPA responded that the emails it released in response to Horner’s FOIA request are from “one secondary official account to conduct EPA business.” Horner is also disappointed with the content of the emails released so far, stating that EPA apparently decided it “had to produce a lot of something [and,] [d]esperate to produce nothing at the same time, it came up with this.” Although EPA’s cover letter for the released document states that EPA has only one alias account, Horner has doubts. He says the emails make clear that Jackson has at least two secondary or alias accounts.

Jackson’s decision to step down from her position as Administrator of EPA came just weeks before the court-imposed deadline for the release of the emails associated with her alias account. Although Jackson claimed she was stepping down from the EPA for new challenges and time with her family, some speculate that the increased scrutiny on her alias account, coupled with what those emails might contain regarding the administration’s “war on coal,” likely contributed to her resignation. News of the alias accounts triggered an audit by the EPA inspector general to determine whether EPA followed applicable laws and regulations when using private and alias email accounts to conduct official business.

EPA Extends Current Enforcement Initiatives

Fri, 08 Feb 2013 17:03:00 GMT

On Monday, January 28, 2013, the Environmental Protection Agency (EPA) published in the Federal Register a notice and call for public comments regarding its national enforcement initiatives for fiscal years 2014-16. 78 Fed. Reg. 5799 (Jan. 28, 2013). As EPA explains, it “selects these priority areas every three years in order to focus federal resources on the most important environmental problems where noncompliance is a significant contributing factor and where federal enforcement attention can make a difference.” Id. at 5799. For the FY 2014-16 cycle, EPA proposes to extend the current (FY 2011-13) six initiatives, which are:

1.     Municipal Infrastructure—addressing sewage discharges from combined sewer systems, sanitary sewer systems, and municipal separate storm sewer systems;

2.     Mineral Processing—addressing hazardous waste at phosphoric acid facilities and high risk mineral processing sites;

3.     New Source Review—controlling emissions from coal-fired electricity, cement, glass, and acid production plants;

4.     Air Toxics—addressing toxic emissions from high risk facilities by examining leak detection and repair, flares, and excess emission sources;

5.     Energy Extraction—addressing land-based natural gas extraction facilities, including corporate-wide evaluations; and

6.     Concentrated Animal Feeding Operations (CAFO)—addressing animal waste discharges from large animal feeding facilities.

EPA invites the public to comment on extending these current six initiatives or to propose new sectors or other areas of regulation for consideration. The public docket where comments may be submitted and reviewed is Docket ID No. EPA-HQ-OECA-2012-0956, available here. The deadline for submitting public comments is February 27, 2013.

President Obama Expected to Nominate Gina McCarthy as New EPA Administrator

Wed, 20 Feb 2013 15:38:07 GMT

On December 27, 2012, Lisa Jackson announced her resignation as EPA administrator after serving for four years under the first Obama administration. The White House is expected to announce that President Obama will nominate Gina McCarthy to succeed her.

Currently serving as EPA’s top air pollution regulator, Gina McCarthy has been behind some of the Obama administration’s toughest Clean Air Act policies. The formal title of her position is the Assistant Administrator for the Office of Air and Radiation, which required Senate confirmation. McCarthy is likely to face a difficult confirmation process this time around, with some members of Congress prepared to ask tough questions. Several believe EPA has gone too far in its rulemakings, and some consider President Obama’s nomination of McCarthy as a signal that he intends to follow through on his recent statements about combating climate change.

Prior to her confirmation in 2009, McCarthy served as the Commissioner of the Connecticut Department of Environmental Protection under four governors, served in Mitt Romney’s office when we was governor of Massachusetts, and played a key role in kick-starting the Regional Greenhouse Gas Initiative.

The White House is expected to make an announcement as soon as this Friday.

Summary of February 15, 2013 AEMC Meeting

Mon, 18 Feb 2013 09:46:57 GMT

On February 15, 2013, the Alabama Environmental Management Commission ("AEMC") met to discuss environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the February 15th AEMC meeting.

EPA Issues Draft Climate Change Adaptation Plan

Thu, 28 Feb 2013 12:06:29 GMT

On Friday, February 8, 2013, EPA released for public notice and comment its draft Climate Change Adaptation Plan (“Plan”), within which the agency sets out identified vulnerabilities in its current regulatory scheme, the issues it must address, and goals it seeks to achieve to overcome challenges posed by future changes in the climate. The climate is changing more rapidly than ever before, according to EPA. Specifically, the agency provides, “Until now, EPA has been able to assume that climate is relatively stable and future climate will mirror past climate. However, with climate changing more rapidly than society has experienced in the past, the past is no longer a good predictor of the future. Climate change is posing new challenges to EPA’s ability to fulfill its mission.” Therefore, “[i]t is vital that the EPA anticipate and plan for future changes in climate and incorporate considerations of climate change into many of its programs, policies, rules and operations to ensure they remain effective under future climatic conditions,” according to the Plan. EPA will accept comments on the draft Plan until April 9, 2013. A copy of the Plan is available here.

EPA, FWS, and Other Federal Agencies Brace for Impacts of Sequestration

Thu, 28 Feb 2013 17:35:00 GMT

With less than one day before $85 billion in federal budget cuts known as “sequestration” are to take effect, Congress has not successfully taken action to avert the automatic cuts. Federal agencies like the Environmental Protection Agency (EPA) and the Fish and Wildlife Service (FWS) will experience considerable impacts.

EPA may be forced to reduce funding for states to conduct air pollution monitoring and eliminate or cut back on its own AIRNow reporting and forecasting program, as well as eliminate updates to the Emission Inventory and Air Quality systems. According to a letter from outgoing EPA administrator Lisa Jackson to the Senate Appropriations Committee, sequestration will also result in scaled back CERCLA cleanups and even EPA’s inability to enforce them and ensure that responsible parties pay for cleanup work. In addition, the agency will have to reduce funding for a program to develop flood protection and water-treatment works protection in states affected by Superstorm Sandy, as well as funding for improvements to municipalities’ aging water infrastructure. Other EPA programs that may be impacted include its vehicle emission standard certification program, Energy Star appliance certification program, and research programs on subjects such as the impact of toxic chemicals and management of the effects of a nuclear or natural disaster. The agency may also have to scale back its work on environmental reviews for large transportation and energy projects under the National Environmental Policy Act (NEPA), further delaying the already-slow review process.

FWS will similarly be forced to cut back. As controller of federal excise tax revenues from purchases of hunting and fishing gear, the agency will have to withhold funds that normally would come from that revenue and be given to state wildlife agencies. At more than 100 FWS wildlife refuges established for the primary purpose of supporting endangered species and migratory birds, cuts will hurt secondary public uses like education, recreation, and hunting.

Sequestration is set to take effect tomorrow, March 1, 2013.

Eleventh Circuit Affirms EPA’s Approval of Alabama’s Opacity Rule

Fri, 15 Mar 2013 12:46:18 GMT

On March 6, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed EPA’s 2008 approval of the visible emissions (or “opacity”) regulation promulgated by the State of Alabama and submitted to EPA as a revision to Alabama's State Implementation Plan (SIP) pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq. (CAA), vacated EPA’s 2011 subsequent disapproval of the same revision, and denied the multiple citizen groups’ petition requesting that the court affirm the 2011 EPA disapproval. Balch & Bingham attorneys were part of the legal team that successfully challenged the rule.

In a 2-1 decision, the Court held that EPA's 2011 disapproval was unauthorized by the CAA because EPA failed to make the statutorily required error determination. The Court rejected EPA's reliance on its inherent authority and the Court's remand order as authorization for the 2011 disapproval. Finally, the Court dismissed challenges to the 2008 approval and affirmed the validity of that action.

The Court found that the CAA required the agency to articulate a finding that it erred in initially approving the plan. The Court held that the statutorily required error determination was not made in the text of the 2011 SIP revision disapproval or in the record before the Court, and EPA had thus failed to act in accordance with the CAA.

To read the Eleventh Circuit’s decision, click here.

Mississippi Department of Marine Resources Searches for New Executive Director

Mon, 18 Mar 2013 11:10:34 GMT

The search is on for a new executive director at the Mississippi Department of Marine Resources (DMR), the state agency tasked with management of marine life, public trust tidelands, coastal wetlands, adjacent uplands, and waterfront areas. The former executive director, William Walker, was terminated in the midst of federal and state investigations into the use and allocation of federal and state funds. The agency has also been heavily scrutinized for its limited responses to requests for information made under Mississippi’s Public Records Act.

Thus far, seventeen applications for the position of executive director have been submitted to the Mississippi Commission on Marine Resources, the governing body of the DMR, for review. Three candidates will be selected by the Commission and presented to Governor Phil Bryant, who will then seek Senate confirmation of the selected candidate.

The DMR is coastal Mississippi's one-stop permitting agency for Clean Water Act 404/401 certifications, Coastal Zone Consistency determinations under the Coastal Zone Management Act, and authorizations required under Mississippi’s Coastal Wetlands Protection Act.

Lee DeHihns Honored by the State Bar of Georgia

Fri, 22 Mar 2013 16:30:12 GMT

On February 25, 2013, Lee A. DeHihns, III was honored by the State Bar of Georgia. He received the Environmental Law Section’s 2012 “Award for Service to the Profession of Environmental Law.” Mr. DeHihns is currently Senior Counsel at Alston & Bird, LLP in Atlanta, Georgia where he is a member of the Environmental and Land Development Group. Notably, Mr. DeHihns recently served as chair of the American Bar Association’s (ABA) Section of Environment, Energy and Resources (SEER) in 2007–2008, and he currently serves as SEER delegate to the ABA House of Delegates. Mr. DeHihns began his career in 1974 at the Environmental Protection Agency (EPA) in Washington, D.C., and served as the deputy regional administrator of EPA Region 4 from 1986 to 1990 before joining Alston & Bird.

U.S. Supreme Court Finds NPDES Permits Are Not Required for Runoff from Logging Roads

Wed, 27 Mar 2013 15:27:17 GMT

On March 20, 2013, the U.S. Supreme Court issued its opinion in the matter of Decker v. Northwest Environmental Defense Center, in which the Court determined that stormwater runoff from logging roads does not require a Clean Water Act (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permit. This is a victory for the timber industry and the Environmental Protection Agency (“EPA”), both of whom advocated for this interpretation of the CWA and EPA’s regulations.

The case involved an interpretation of the CWA’s limited exemptions from the NPDES program, as well as EPA’s associated Silvicultural and Industrial Stormwater Rules. In short, the CWA and EPA’s regulations generally require entities engaged in silvicultural activities to secure NPDES permits for discharges of channeled stormwater runoff if such discharges are “associated with industrial activity.” Otherwise, such discharges are exempt from the NPDES permitting requirement. Notably, EPA has defined the phrase “associated with industrial activity” to include facilities classified as Standard Industrial Classification (“SIC”) 24, which includes the logging industry as a whole. However, EPA has consistently interpreted the reference to SIC 24 to subject only the four specific silvicultural activities referenced in the Silvicultural Rule (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) to the NPDES permitting scheme. In fact, EPA finalized its amendment to the Industrial Stormwater Rule to clarify this exact issue three days prior to oral argument before the Court.

Despite EPA’s consistent exclusion of logging activities other than those specifically referenced in its Silvicultural Rule from the NPDES program, the Northwest Environmental Defense Center (“NEDC”) filed suit in federal district court in 2006 alleging that several lumber companies, as well as a number of Oregon state and local officials, caused unauthorized discharges of channeled stormwater runoff originating from logging roads into two Oregon rivers without an NPDES permit. NEDC relied upon a strict interpretation of EPA’s rules to support its claims and argued that such regulatory provisions were unambiguous. The federal district court dismissed the action on other grounds, concluding that a permit was not needed because the discharges did not originate from a “point source,” a threshold prerequisite for the applicability of the NPDES permitting requirements. The Court of Appeals for the Ninth Circuit reversed, finding the discharges originate from a point source and that the plain language of the rules at issue support NEDC’s assertions. The Supreme Court reversed the Ninth Circuit’s opinion. At the outset, the Court held that EPA’s newly revised Industrial Stormwater Rule did not render NEDC’s claims moot. However, the Court held that the EPA regulations at issue are open to interpretation and that EPA’s reading of its own regulations is reasonable. As such, EPA’s interpretation is entitled to deference from the Court.

Perhaps the most notable portions of the Court’s decision are the concurrences written by Justices Roberts and Scalia. Justice Scalia, who also dissented in part, took issue with the Court’s deference to EPA’s interpretation of its own regulations. Justice Roberts simply noted that it may be “appropriate to reconsider” the agency-deference principle and invited the bar to present a case to the Court that would allow it to evaluate the current standard.

FOIA Tip to Federal Agencies: Just Pick up the Phone

Tue, 09 Apr 2013 18:15:02 GMT

On Thursday, March 28, 2013, two free market policy institutes sued the U.S. Environmental Protection Agency (“EPA”) under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), over EPA’s denials of the groups’ requests for fee waivers for their requests for EPA to produce instant messages (“IM”) sent and received among EPA personnel. The Competitive Enterprise Institute—led by EPA watchdog Christopher Horner—and the American Tradition Institute each filed separate FOIA requests with EPA in January 2013 seeking access to such IMs. The groups say that they recently learned of EPA’s practice of using IM to communicate among staff while conducting certain business functions, in an “organized and systematic” effort, they claim, to avoid public disclosure of EPA’s activity under FOIA. The complaint alleges that the IMs are “agency records” under federal record-keeping and disclosure laws and must therefore be produced under FOIA, but that, “[t]o Plaintiffs’ knowledge Defendant EPA has never produced an Instant Message in response . . . to a request under FOIA.” Specifically, the FOIA cause of action allegedly relates to EPA’s denial of “both Plaintiffs’ requests to have their fees waived or reduced for the requests for Instant Messages at issue, . . . despite having, until recently, routinely provided Plaintiffs fee waivers for requests of far less public interest.”

Could this “recent” change of heart by EPA to deny CEI’s fee waiver requests have anything to do with Horner’s campaign to expose another EPA practice of assigning “alias” email accounts to top administrators through which they conduct most of their official business? Horner’s FOIA request in 2012 for former Administrator Lisa Jackson’s emails under the alias “Richard Windsor” led to a highly publicized discussion over whether EPA has intentionally taken measures to avoid open records laws. Lisa Jackson resigned earlier this year.

For a copy of the CEI’s and ATI’s recent FOIA complaint, click here. Copies of the Richard Windsor emails are posted to EPA’s website here.

Environmental Groups & States Sue EPA for Failure to Issue GHG Rules

Thu, 18 Apr 2013 19:02:00 GMT

On April 15 and April 17, several environmental groups, states, and cities notified EPA of their intent to sue the agency for its failure to promulgate final emission rules capping greenhouse gas emissions from new fossil fuel fired electric generating units (EGUs). Similarly, some of the groups also challenged the agency’s failure to propose and then ultimately pass rules for capping greenhouse gases from existing EGUs. EPA proposed the new source standards in March 2012 and was required to finalize the rule covering new plants on Saturday, April 13, 2013, but missed the deadline. The agency has received nearly 3 million comments on the proposed rule.

The proposed new source rule was challenged in the D.C. Circuit by many utility groups, but the case was dismissed in December 2012 on the grounds that the proposed rule did not constitute final agency action. The environmental groups joining the April 15 petition included Environmental Defense Fund, Sierra Club, and Natural Resources Defense Fund. States joining the April 17 petition included Connecticut, Delaware, Maine, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. The states were also joined by the City of New York and the District of Columbia.

Mississippi Attorney General Files Suits Seeking Damages Related to Deepwater Horizon Oil Spill

Fri, 19 Apr 2013 18:44:00 GMT

Today, Mississippi Attorney General Jim Hood filed suits in both state and federal court seeking to recover damages caused by the Deepwater Horizon oil spill. The State filed a suit in the Harrison County Circuit Court raising state law claims and seeking recovery of the state statutory penalties, such as the Mississippi Air and Water Pollution Control Law, and damages under Mississippi common law. Concurrently, the State filed a separate suit in the U.S. District Court for the Southern District of Mississippi, Gulfport Division, which seeks other damages available under federal law, such as the Oil Pollution Act of 1990. The State further seeks to recover punitive damages, attorneys’ fees, costs of litigation, as well as declaratory and injunctive relief.

Attorney General Jim Hood stated, “I have worked very hard to get BP to discuss a reasonable settlement. BP refused to negotiate, forcing the state to take this action.”

The lawsuits come on the eve of the three-year anniversary of the Deepwater Horizon disaster of April 20, 2010, which killed eleven workers and caused an unprecedented oil spill. Just a few days ago, on April 17, 2013, phase one of the multidistrict litigation over the Deepwater Horizon oil spill, during which U.S. District Court Judge Carl Barbier heard testimony from 60 witnesses, drew to a close. The purpose of phase one of the trial is to apportion blame among BP and its contractors and to determine each party’s level of negligence in the events that led to the oil spill. Judge Barbier has given the parties approximately two months to submit their proposed findings of fact and conclusions of law regarding phase one. A second phase of the trial, to determine the quantity of oil spilled, is scheduled to begin this fall.

Attorney General Hood concluded, “I am sure BP and the other defendants will seek to delay and deny the State our day in court by seeking to remove our state law suit to federal court. It is my hope that the Federal District Court in the Southern District of Mississippi will remand the case to state court within 30 days of the defendants’ filing for removal, so that the state can proceed expeditiously in state court. While claims filed by other states have languished in federal court, I do not want to see that happen to us. States are separate sovereigns entitled to litigate their state law claims in state courts.”

April 19th Meeting of Alabama Environmental Management Commission

Tue, 30 Apr 2013 11:12:22 GMT

On April 19, 2013, the Alabama Environmental Management Commission ("AEMC") met to discuss environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the April 19th AEMC meeting.

$600 Million in Natural Resource Restoration Proposed for Gulf

Mon, 06 May 2013 09:46:55 GMT

The Deepwater Horizon Oil Spill Natural Resource Damage Assessment Trustees have reached a conditional agreement with BP for an additional $600 million in early restoration projects to jumpstart natural resource restoration along the Gulf Coast. The projects, stemming from the 2010 $1 billion early restoration agreement between Federal and State trustees and BP, span from Texas to Florida and are intended to restore ecological and human resources injured as a result of the oil spill and related response actions. The Trustees and BP previously agreed to $71 million in early restoration projects, which were proposed to the public in Phase I and II early restoration plans. Many of those projects are currently being implemented across the Gulf.

A natural resource damage assessment (NRDA) is the process used by trustees to develop the public’s claim for natural resource damages against those responsible for a spill and related response actions. It seeks compensation for the harm done to natural resources and the services they provide, including assessing the loss of recreational opportunities such as fishing, beach-going, and wildlife viewing.

In the coming months, the Trustees will provide more information about the proposed projects and will at that time invite public review and comment in accordance with the Oil Pollution Act regulations, 15 C.F.R. §§ 990 et seq.

A copy of the announcement in the Federal Register can be found here.

New Alabama Law Encourages Historic Rehabilitations

Fri, 10 May 2013 18:23:00 GMT

On May 9, 2013, the Alabama Legislature passed H.B. 140, the Historic Tax Credit Act, which provides a tax credit for the rehabilitation, preservation, and development of historic structures. Providing an income tax credit of up to $5 million over four years for qualified redevelopment projects, this incentive is intended to encourage rehabilitation of historic homes and commercial buildings. Because of a sunset clause provision which causes the tax credit to expire in three years, it is hoped that the tax credit will quickly spark an increase in rehabilitation projects.

Under the new law, qualifying projects must include a structure certified by the Alabama Historical Commission or built prior to 1936 and the proposed rehabilitations must be substantial – those where the rehabilitation expenditures exceed 50% of the original purchase price or $25,000, whichever is greater. Also, prior to beginning the work, the owner must submit an application and rehabilitation plan to the Alabama Historical Commission for review.

For taxpayers hoping to take advantage of this legislation, time is of the essence due to the sunset clause provision and fact that tax credits will be allocated in the order in which application and plans are received. After review the Alabama Historical Commission, an allocation of tax credit will be provided to the owner within ninety days and owners may commence rehabilitation work. Once complete, the owner must notify the Alabama Historical Commission that the rehabilitation has been completed and provide documentation, including certification from a licensed certified public account and an appraisal.

“This law presents a significant opportunity for homeowners because, unlike a similar federal program focused on income-producing properties, homeowners can take advantage of this tax credit for their own residences,” observed Jim Noles, a partner at Balch & Bingham whose practice involves historical and cultural resources.

The bill is awaiting the Governor’s signature and will then become effective immediately.

Smithfield Foods Hit With $11M Verdict For Hog Farm

Mon, 08 Mar 2010 08:04:43 GMT

A large pig farm in Gentry County, Mo., was ordered by a jury to pay $11 million to 15 neighbors who complained that the odors from the farm's cesspits forced them to stay indoors and discouraged them from inviting guests to their homes.

Smithfield unit Premium Standard Farms (PSF) was hit with the jury verdict last Thursday (March 4) after a five-week trial in the Circuit Court of Jackson County, Mo., the plaintiffs' lawyers said on Friday.

The 15 plaintiffs — who lived near the 4,300-acre factory hog farm in Berlin, Mo., — alleged that waste emissions from its concentrated animal feed operations caused a nuisance that hurt their quality of life.

The PSF farm confines 200,000 hogs every year that result in 83 million gallons of liquid waste in runoff lagoons, the plaintiffs said. This manure generated methane, ammonia and hydrogen sulfide that could be smelled for miles and often kept them indoors, they said. One cesspit had a 6-inch-thick matting of flies and maggots and caused a "constant belching-up" of chemicals and odors into the air, said Robert Lawrence, a Johns Hopkins University public health professor who gave expert testimony for the plaintiffs. "I have never, ever observed anything as extreme as the cesspits," Lawrence told the jury.

The company previously paid $5.2 million in 1999 to 52 neighbors who had complained about the odors, but neighbors sued again because the problems had not been fixed, said Charlie Speer, a Kansas City attorney representing them.

PSF, which claims to have spent $39 million fixing the odor problem, said it plans to appeal the jury's verdict. "In light of this decision and in view of the continuing hostile environment toward live hog production, we have serious concerns whether we will ever make any future investments in the state of Missouri," the company said in a statement. Posted by Bruce Barze, Balch & Bingham LLP.

2nd Circuit Stays the Issuance of the Mandate in Climate Change Case

Tue, 23 Mar 2010 15:25:44 GMT

By granting the defendants' motion to stay the issuance of the mandate in Connecticut v. AEP, the Second Circuit prohibited proceedings from beginning in the district court until the U.S. Supreme Court's disposition of the case. This ruling essentially prevents discovery from initiating until after the Supreme Court either denies the writ or grants it and then actually decides the merits of the case.

This Week in Environmental History (March 29 -- April 4)

Sun, 28 Mar 2010 15:32:21 GMT

On March 31, 2003, Great Britain's Calder Hall nuclear power station ceased operations, closing a historic chapter in the history of nuclear power. The station, located in Sellafield, England, had opened on October 17, 1956, as the world's first nuclear power station to generate electricity in commercial quantities. For 47 years, Calder Hall did just that, with much of its production from the plant's four reactors focused on the creation of weapons-grade plutonium for Great Britain's defense programs.

During its operations, Calder Hall produced a relatively small amount of energy -- merely 180 megawatts, with only 40 megawatts being delivered to England's electrical grid. In terms of longevity alone, Calder Hall's performance was an impressive one; originally designed to operate for 20 years, the facility doubled expectations.

Feds to Fund Climate Change Research into Southeastern Freshwater Mussels

Wed, 31 Mar 2010 14:02:46 GMT

The U.S. Geological Survey’s National Climate Change and Wildlife Science Center has announced that it will fund research into how freshwater mussels in the southeast respond to human-induced changes in water quality, habitat, and flow. The project funded by USGS, which is part of the Department of the Interior, is one of seventeen projects funded with fiscal year 2009 money as part of an effort to study the impact of climate change on wildlife throughout the United States. The research into southeastern mussels aims to develop models that will allow federal and state agencies to predict how climate change will impact wildlife and to develop mitigation strategies. The principal researcher for the southeast mussel project is Thomas Kwak, Ph.D., at North Carolina State University.

Another project in the southeast will attempt to model how species and habitat in Florida would respond to climate change. A full description of all the funded projects can be found at http://nccw.usgs.gov/2009RFP-projects.html.

Renewable Energy Developments in the Southeast

Wed, 07 Apr 2010 16:42:00 GMT

Private equity firm Energy Investors Funds (EIF) and developer NTE Energy announced a joint venture, EIF NTE Hybrid Renewable Energy, LLC, to develop, construct and operate large-scale hybrid renewable energy facilities throughout the United States. Recognizing the increasing demand for cost-effective, clean renewable options, EIF NTE Hybrid Renewable Energy will construct plants that combine solar, biomass, and other renewable technologies with natural gas turbine technology to produce low-cost renewable sources of electricity. While the announcement didn’t identify specific projects, there are “plans to announce new projects in Florida, South Carolina, and Alabama in the near future.”

Twin Creeks Technologies, a venture-backed solar technology company, announced plans to break ground this summer on a $175 million, 250,000-square-foot solar panel manufacturing facility in Senatobia, Mississippi with plans to produce up to 100 megawatts of solar panels per year. “Twin Creeks was the first major economic development project to utilize Mississippi’s new clean energy incentives program, which will open the door for new job opportunities in the clean energy sector for all Mississippians.” Gray Swoope, executive director of the Mississippi Development Authority, said in a statement published in the Memphis Business Journal.

With increased state incentives and pending federal renewable energy standards, the Southeast, an area which has historically been more reliant on fossil-fuels, is primed for new economic development and ventures to provide utilities with more renewable energy options, including alternatives to purchasing out-of-state renewable energy or relying on renewable energy credits.

This Week in Environmental History (April 12 - 18)

Sat, 10 Apr 2010 19:32:33 GMT

On April 14, 1935, 20 massive dust storms struck America's so-called Dust Bowl -- a region of some 100 million acres centered on the panhandles of Texas and Oklahoma and adjacent parts of Colorado, New Mexico, Kansas, and Minnesota. The storms -- often referred to as "black blizzards" or "black rollers" -- reduced visibility to less than five feet as they wreaked extensive damage in their path. The day became known in history as "Black Sunday."

In the minds of many, Black Sunday represented the climax of an environmental disaster that had begun years earlier. Several years of unusually (and relatively) wet weather in the Great Plains had encouraged agricultural settlement that, in many cases, set the stage for the erosion problems that would come. By the time drought arrived in 1930, the region was primed for a disaster that culminated in a severe drought in 1934. By then, intensively increased plowing had eliminated huge swathes of the native grasses that covered the prairie lands for centuries. Those now-absent grasses had previously held the soil in place and maintaining its moisture; in their absence, the drought conditions caused the topsoil to grow so dry that the wind simply blew it away. Making matters worse, the dusty soil aggregated in the air to form immense dust clouds. Those clouds prevented further prevented rainfall.

The Dust Bowl sparked at least two major developments in American history. One was a massive exodus from the Plains states. By 1940, some 2.5 million has left, with many migrating west to California. These were the unfortunate souls whose tales were chronicled by John Steinbeck in The Grapes of Wrath and Of Mice and Men.

The second development was an increased federal focus on soil conservation. In 1933, Interior Secretary Harold L. Ickes had established the Soil Erosion Service in August 1933; in 1935 it was transferred and reorganized under the Department of Agriculture and remained the Soil Conservation Service -- the predecessor agency to today's Natural Resources Conservation Service. -- Posted by Jim Noles

Who Says Federal Agencies Can’t Be Nice?

Wed, 28 Apr 2010 10:10:58 GMT

We were perusing EPA's Semiannual Regulatory Agenda for Spring 2010, looking for the latest on the timing of proposed rules to require CO2 reporting for geologic sequestration projects, when we were treated to an oddly personal offer of good wishes.

The federal regulatory agendas are coordinated at a single site managed by the Office of Information and Regulatory Affairs (OIRA). OIRA's status summary had a handy link to EPA's geologic sequestration web page. We clicked and got one of those redirect messages, telling you you’re about to leave one site for another. We were about to click through when we stopped and noticed a nice little message OIRA left for us:

It says, "We hope that you find what you are looking for."

Thanks OIRA! But we still haven't found what we're looking for.

This Week in Environmental History (June 14 - June 20)

Mon, 14 Jun 2010 08:33:25 GMT

On June 15, 1978, the United States Supreme Court rendered its 6-3 decision in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). The Court’s decision, which effectively (albeit temporarily) enjoined the construction of a dam on the Little Tennessee River, underscored the vitality of the Endangered Species Act, even in the face of federal appropriations foiled by the Act’s operation.

The case arose from opposition to the construction of TVA’s Tellico Dam, sparked by the discovery of snail darters (an endangered species) in an upriver reach of the soon-to-be-dammed river. The dam, if completed, would inundate the darter’s “critical habitat,” thus eradicating the species and violating Section 7 of the ESA. If the ESA functioned as its statutory language directed, it would effectively block completion of the dam.

For TVA, and for proponents of economic development in the region, it was difficult to stomach the idea of a lowly snail darter foiling completion of the multimillion-dollar construction project. The dam, which had been authorized in 1967 and under construction for some time, was “designed principally to stimulate shoreline development, generate sufficient electric current to heat 20,000 homes, and provide flatwater recreation and flood control, as well as improve economic conditions in ‘an area characterized by underutilization of human resources and outmigration of young people.’”

Chief Justice Warren Burger, however, was unmoved by the prospect of an incomplete dam. He penned a majority opinion captured the essence of the issue quite succinctly en route to enjoining completion of the dam.

“It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million,” Burger wrote. “The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result.”

Legislation sponsored by Tennessee U.S. Congressman John Duncan, Sr., and U.S. Senator Howard Baker ultimately resolved the impasse by statutorily exempting the Tellico Dam project from the Endangered Species Act. President Jimmy Carter signed the enabling legislation on September 25, 1979, and, on November 29, 1979, TVA closed the dam’s sluice gates and began filling the Tellico reservoir.

Fortunately for the snail darter, large numbers of the species had, in the interim, been relocated to safer reaches of the Hiwassee River and, in 1984, was classified as “threatened” rather than “endangered.” – Posted by Jim Noles

Fifth Circuit Rejects Federal Government’s Request to Restore Offshore Deepwater Drilling Moratorium

Fri, 09 Jul 2010 10:21:59 GMT

On May 28, 2010, the Department of Interior (DOI) and the Minerals Management Service (MMS) imposed a six-month moratorium on offshore drilling operations of new and currently permitted deepwater wells. Hornbeck Offshore Services, LLC sued the Secretary of the Interior, DOI, MMS, and the Director of MMS for declaratory and injunctive relief. On June 22, a Federal District Court judge in Louisiana issued a preliminary injunction blocking the moratorium and refused to stay his order during the appeals process. Click here to read more about the June 22 order.

Yesterday, a three-judge panel of the 5^th Circuit ruled that the Secretary of the DOI failed to demonstrate a likelihood of irreparable injury if the stay is not granted, but noted that the Secretary has the right to apply for emergency relief if drilling activity by deepwater rigs commences or is about to commence. The federal government has indicated that a new and refined moratorium may be issued as early as today.

The court indicated that an appeal of the preliminary injunction will be argued on its merits during the last week of August. Click here for a copy of the order.

Obama Hopes Third Time Is the Charm for Deepwater Moratorium

Mon, 12 Jul 2010 20:56:32 GMT

As promised, the Obama administration issued a new moratorium on deepwater drilling today in response to last week’s decision by the Fifth Circuit Court of Appeals to reject the government’s effort to restore its initial moratorium. Effective until November 30, 2010, the new moratorium applies to most deepwater drilling activities that use subsea blowout preventers or surface blowout preventers on floating facilities. Unlike the original moratorium, this one is not based on the water depth of the operations but rather on drilling configurations and technologies. The previous ban applied to permits in waters at depths greater than 500 feet. The government hopes that industry will evaluate its ability to respond effectively to a spill and indicated that the ban could be revoked before November if it determines that deepwater drilling can occur safely. The oil industry argues that it is unclear what it will take to convince the administration that deepwater drilling is safe. The government also indicated that an extension to the ban may be required if industry fails to prove safety and effective emergency response measures in the event of another drilling accident.

The Justice Department plans to file a motion with the U.S. District Court in Louisiana to dismiss the original case since the old moratorium is no longer effective. Hornbeck Offshore Services, an oil-field service company, sued the government over the original moratorium. On June 22, a U.S. District Judge agreed with the oil and drilling industry and ordered the administration to lift the moratorium. A representative of Hornbeck stated late today that the new moratorium is under review by industry officials and that a response is forthcoming.

Steve McKinney Installed as Chair of the ABA's Section of Environment, Energy and Resources

Mon, 09 Aug 2010 16:50:41 GMT

Steve has been active in SEER for over 25 years and has held various positions throughout that time. After more than two decades of service, it is an honor for Steve to be appointed chair of the Section. With over 11,000 members nation-wide and abroad, SEER is the leading place in the nation for Environment, Energy, and Resources law. Over the next year, Steve will guide and direct the section during a period of substantial regulatory change and immediately following the worst coastal catastrophe in American history.

Good luck Steve and Congrats!

Click here for more information about SEER.

Coal Ash Proposed Rules - Comment Period Extended

Thu, 19 Aug 2010 08:35:18 GMT

Before today, the public comment period on EPA's proposed rules for the disposal of "coal combustion residuals" from electric utilities was scheduled to expire on September 20, 2010. After receiving scores of requests -- mainly from industry and state and local governments -- to extend the comment period by 120 days, EPA has granted an extension of half that. The new deadline to file public comments is November 19, 2010. Here is a link to the prepublication copy of the notice scheduled to run in tomorrow's Federal Register.

EPA has also posted scores of additional supporting materials to its electronic docket for the proposed rules. Most pertain to beneficial reuse of ash, gypsum, and other byproducts of burning coal.

Environmental Partner to Participate in “Going Green” Panel

Mon, 18 Oct 2010 10:52:44 GMT

Next Thursday, October 28, Environmental Section partner Rob Fowler will serve as a panelist at Birmingham’s 2010 Going Green Awards and Panel luncheon. The other panelists are Chris Eckroate, Director of Civil Engineering at Goodwyn Mills & Cawood, Scott Evans, Senior Design Services Manager at Hoar Program Management, and Beth Stewart, Executive Director of the Cahaba River Society. The panel will discuss the business of sustainability, and the third annual Going Green Awards will follow.

The Going Green Awards and Panel luncheon will be held on October 28, 2010, from 11:00 a.m.–1:00 p.m. at the Harbert Center in Birmingham. For tickets, click here.

Proposed Expansion of Cahaba River National Wildlife Refuge on Hold

Tue, 26 Oct 2010 15:52:47 GMT

The U.S. Fish and Wildlife Service (FWS) announced on Monday that it will take six months to reevaluate the proposed expansion of the Cahaba River National Wildlife Refuge. The delay comes after fierce opposition from Alabama landowners in the expansion area, as well as industry groups like the Alabama Forest Owners’ Association. Senator Richard Shelby (R-AL) is also among those who oppose the expansion and welcomed yesterday’s announcement, saying in a press release that it “indicates that the FWS now agrees that the scope and enormity of the proposed acquisition is not only disproportionate, but also lacking any legitimate justification.”

The expansion would increase the size of the 3,600-acre refuge by more than 100,000 acres and, by FWS’s estimates, cost $290 million. Although proponents of the expansion consider it necessary to protect the water quality of the Cahaba River, others believe that it would interfere unjustifiably with private property rights, forestry, and mining. FWS acknowledged that not enough had been done to earn public support the first time around and said that it will start over with a renewed focus on obtaining input from citizens in the Cahaba River basin.

Despite the delay in planning, public comments on the expansion proposal are still due to FWS by December 6, 2010.

Environmental partner Jim Noles was quoted in an article about the FWS announcement in today's Birmingham News, which can be found here.

Coming Attraction: "The Lorax"

Thu, 28 Oct 2010 10:57:00 GMT

According to USA Today http://www.usatoday.com/life/movies/news/2010-10-25-Lorax25_ST_N.htm), Illumination Entertainment (the production company responsible for the animated features Despicable Me and Horton Hears a Who, will be giving Dr. Seuss' The Lorax the full-feature, 3D treatment in an upcoming film.

Danny DeVito will voice the Lorax, Zac Efron will voice Ted, the young boy who seeks out the Once-ler to hear his tale, and Ed Helms (Andy Bernard of The Office) will voice the Once-ler.

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NMFS Denies Petition to List Alabama Shad under ESA

Fri, 18 Feb 2011 17:56:10 GMT

The National Marine Fisheries Service (NMFS) announced its 90-day finding on a petition to list the Alabama shad (Alosa alabamae), an anadromous clupeid species of fish, as threatened or endangered and designate critical habitat under the Endangered Species Act (ESA). The petition, submitted April 20, 2010, by the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and the West Virginia Highlands Conservancy, requested the listing of 404 aquatic, riparian, and wetland species from the Southeastern United States. The petition claimed that Alabama shad have experienced population declines of as much as 30% and attributed these declines to habitat loss and degradation caused by impoundments, pollution, dredging, and other factors. NMFS found, with respect to the Alabama shad only (having found the Alabama shad to be the only species of the 404 within its jurisdiction), that the petition “does not present substantial scientific or commercial information indicating that the petitioned actions may be warranted,” effectively denying the petition.

The Alabama shad is already on the Species of Concern list, which means it has been designated as a species for which NMFS has some concerns regarding its status and threats but for which insufficient information is available to indicate a need to list the species under the ESA. The Species of Concern status carries no procedural or substantive protections under the ESA, but it does provide for periodic review of the species to evaluate whether it should be retained or removed from the list or proposed for listing under the ESA. NMFS is currently scheduled to release a Species of Concern review in 2011.

The Center for Biological Diversity has vowed to challenge the decision in court.

To read the Federal Register notice of the NMFS finding, click here.

Alabama Governor Imposes Moratorium on Broad Class of New and Expanded Landfills

Thu, 24 Feb 2011 09:10:53 GMT

In an executive order issued yesterday, February 23, 2011, Alabama Governor Robert Bentley ordered the Alabama Department of Environmental Management (ADEM) to not approve any new or modified permits, or the transfer of permits, for a broad class of landfills that would fall under a new series of regulations that he, in the same executive order, directed ADEM to promulgate.

The new regulations would be focused on those landfills which would have, upon completion or by expansion, either:

(1) A proposed capacity in excess of 1,500 tons per day;

(2) A proposed capacity of 2,000 cubic yards per day or more;

(3) A site consisting of 500 acres or more;

(4) When combined with existing or proposed facilities located within the same county or counties or within 20 miles thereof, a capacity or site which exceeds the minimum amoutns set in (1), (2), or (3) above; or

(5) A proposed capacity whether new or by expansion which will be more than reasonably anticipated in the foreseeable future for the communities located within the county in which the facility is to be located or within 20 miles of the facility.

A copy of the governor's order, Executive Order No. 8 is available at: http://governor.alabama.gov/pr/news_detail.aspx?ID=4704.

These new regulations will be developed by ADEM in coordination with the Alabama Department of Public Health and the Alabama Solid Waste Advisory Committee. -- Posted by Jim Noles

U.S. Supreme Court Bans Climate Change Nuisance Suit

Mon, 20 Jun 2011 16:15:20 GMT

Today, the U.S. Supreme Court reversed and remanded the Second Circuit opinion in AEP v. Connecticut and held that the States, the City of New York, and three private land trusts could not use federal common law public nuisance claims against carbon-dioxide emitters. However, the opinion was not a complete victory for industry because the Court was split 4-4 (Justice Sotomayor recused due to her involvement with the Second Circuit panel) on whether the plaintiffs had Article III standing to bring the lawsuit. By failing to decide this issue, it leaves the door open for similar lawsuits should EPA ever cease to regulate carbon dioxide.

This case was originally filed in July 2004 in the U.S. District Court for the Southern District of New York. The complaints alleged that the certain utility companies’ emissions of carbon dioxide, a greenhouse gas, contribute to global warming, which the plaintiffs assert is a public nuisance. Under common law public and private nuisance theories, the plaintiffs sought a judicial order (1) holding each defendant jointly and severally liable for creating, contributing to, and/or maintaining global warming and (2) requiring each of the defendants to cap its emissions of carbon dioxide and then reduce those emissions by a specified percentage each year for at least a decade. In 2005, the U.S. District Court dismissed the case, holding that the question of global warming is a nonjusticiable political question and should be addressed by legislation.

Plaintiffs appealed the trial court’s dismissal of all claims to the Second Circuit Court of Appeals on September 20, 2005. On September 21, 2009, the Second Circuit Court of Appeals reversed the district court decision and upheld the right of the states to bring nuisance claims against the utilities.

Click here to read the Supreme Court opinion

EPA Proposes to Revise Definition of Solid Waste

Thu, 21 Jul 2011 09:49:55 GMT

Specifically, the Environmental Protection Agency (EPA or the Agency) is proposing to revise certain exclusions from the definition of solid waste for hazardous secondary materials intended for reclamation that would otherwise be regulated under Subtitle C of the Resource Conservation and Recovery Act (RCRA). According to EPA, the purpose of these proposed revisions is to ensure that the recycling regulations, as implemented, encourage reclamation in a way that does not result in increased risk to human health and the environment from discarded hazardous secondary material.

Comments are due on September 20, 2011.

Click here to read EPA's proposed rule.

EPA Withdraws Ozone Proposal

Fri, 02 Sep 2011 13:59:39 GMT

Today the White House asked the EPA Administrator to scrap its proposal to set a more stringent ozone NAAQS. The Bush Administration EPA finalized new ozone standards in 2008 and the Obama EPA voluntarily decided to revise those standards.

The ozone rule proposed by EPA would have set national smog standards at between 60 and 70 parts per billion (ppb) -- a level identified by the agency's science advisory panel but nixed by the George W. Bush administration in 2008 in favor of a limit of 75 ppb. The Obama EPA revisions would have come only three years into the statutory five-year review cycle for the NAAQS and were estimated to cost up to $90 billion dollars annually according to EPA.

Click here to read the letter the White House sent to EPA.

Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service (11th Cir. April 18, 2012)

Fri, 27 Apr 2012 16:53:25 GMT

The U.S. Court of Appeals for the Eleventh Circuit ruled on April 18, 2012, that the U.S. Fish and Wildlife Service (FWS) is not required to designate “critical habitat” for the Florida panther.

Sierra Club and other environmental groups had petitioned FWS in 2009 to create critical-habitat rules for the endangered Florida panther, but FWS denied the petitions because the species was listed as endangered in 1967, before critical habitat provisions were added to the Endangered Species Act (ESA).

In this decision, the Eleventh Circuit affirmed a district court ruling that it was barred under the Administrative Procedure Act (APA) from reviewing the agency’s decision because the decision is “committed to agency discretion by law.” Because the 1978 amendment—and later the 1982 amendment—to the ESA requires that critical habitat must be designated concurrently with the listing of a species, it cannot apply to any species that—like the Florida panther—was listed prior to 1978. The regulations that FWS was accused of violating were held not to apply to a decision whether to designate critical habitat for a pre-1978 species and thus not to limit the agency’s discretion, which means that the denial of the environmental groups’ petitions is not subject to judicial review under the APA.

FWS to Consider Listing Rattlesnakes under the Endangered Species Act

Thu, 10 May 2012 11:56:30 GMT

FWS has published a notice that it is considering whether to list the eastern diamondback rattlesnack as “threatened” under the Endangered Species Act. Diamondbacks are found throughout much of the Deep South. FWS is accepting public comments through July 9, 2012.

If the diamondback is listed as threatened, efforts to manage diamondbacks would be subject to federal regulation. We've provided some questions and answers to explain what this means.

Q: Why is FWS considering listing diamondbacks under the Endangered Species Act?

A: An environmental group known as the Center for Biological Diversity filed a petition requesting FWS to list the diamondback as threatened. Any time FWS receives a listing petition, the agency must review the petition and make a finding as to whether listing may be warranted.

The Center for Biological Diversity is an environmental association based in Tuscon, Arizona. The Center frequently litigates on ESA issues all around the country. However, it has become more active in the Southeast only in the past few years. Just last week, the Center announced the opening of its first southeastern field office, in St. Petersburg, Florida. The Center has also petititioned FWS to list 404 Southeastern aquatic species under the ESA. FWS now has that petition under consideration.

Q: I thought rattlesnakes were poisonous to humans. Why would the federal government want to protect that kind of species?

A: The ESA requires listing determinations exclusively on the basis of information relating to the species’ status and threats to the species. The listing factors are provided in ESA Section 4(a)(1), which is available here. The law generally does not allow consideration of whether the species could be considered a danger or nuisance to people. (There is one exception to that, but it doesn’t apply here. If FWS determines that certain insects are pests that present certain risks to people, then it cannot be an endangered species. However, that applies only to insects, and not to threatened species.)

FWS does not consider economic and social impacts in determining endangered or threatened status. However, FWS is also required to designate “critical habitat” at the time of listing. As part of the process of designating critical habitat, FWS must consider economic impacts, national security implications, and other issues.

Q: What happens if the diamondback is listed?

A: Generally, species listed as threatened or endangered are subject to a prohibition against a “take” of them (ESA Section 9). That includes a kill or direct injury. It also may include other actions that affect the species’ habitat, if it results in harm to the species.

For threatened species only, FWS has the authority to issue special rules in place of the take prohibition (ESA Section 4(d)). A special rule can include provisions that FWS deems to be “necessary and advisable for the conservation of” that species. So, FWS could issue regulations explaining what individuals on private land can and cannot do with respect to diamondbacks. Whether or not FWS issues a special regulation is within the agency’s discretion.

Also, federal agencies have to consult with FWS on proposed federal actions that may affect listed species (ESA Section 7). That includes permits like a Corps of Engineers wetlands permit. The consultation obligation for federal agencies means an activity associated with a federal permit must undergo additional government scrutiny.

Q: Does that mean if I encounter a diamondback, I can’t take action to protect myself?

A: No. Even if FWS lists the diamondback as threatened, the ESA also provides a defense against liability “if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species” (ESA Section 11(b)(3)).

Q: What can I, as a member of the public, do now?

A: FWS is accepting comments and information from the public on whether to list the eastern diamondback rattlesnake as threatened. FWS must make listing decisions strictly on the basis of information about the status of the species (such as how abundant it is) and threats to the species. FWS tends to favor scientific literature, but any first-hand observations would be relevant, as would comments on information provided in the FWS notice or submitted by the Center for Biological Diversity.

Q: How do I submit comments?

A: Information on how to submit comments is provided in the FWS notice. FWS will also establish an electronic docket at www.regulations.gov to submit information on line. That docket is not ready as of the time of this post. We will provide an updated link when it is available. Comments are due on Monday, July 9, 2012.

UPDATED: Electronic docket is here.

Q: What happens next?

A: FWS will receive and review any information provided in response to the current notice. FWS then must make a formal determination that listing the eastern diamondback rattlesnake as threatened either is or is not warranted.

Technically, FWS is required to issue its determination within one year of the petition being filed, which is August 29, 2012. In practice, FWS commonly misses that deadline, so it may not take action by then.

If FWS finds listing is warranted, FWS must issue either a proposed regulation to implement the listing decision or an explanation of why FWS is unable to do so at that time. The regulatory restrictions discussed in this post would take effect only after the species is placed on the list of threatened or endangered species.

Please feel free to contact us for more information.

EPA Releases Final Area Designations for National Air Quality Standards for Ozone

Thu, 17 May 2012 14:49:29 GMT

The Environmental Protection Agency (EPA) has issued final area designations for the 2008 air quality standards for ground-level ozone, otherwise known as smog. The Clean Air Act (CAA) requires EPA to set National Ambient Air Quality Standards (NAAQS) for certain pollutants, including ozone, the main component of smog. EPA has set the standard at 0.075 parts per million. In addition, EPA designates areas of the country as in “attainment” or “nonattainment” with the proposed standards. The CAA requires state and local governments to take steps to control ozone pollution in nonattainment areas within their states and to address air pollution from their state that is adversely affecting air quality in downwind states. These steps can include stricter controls for industrial facilities and transportation planning requirements to reduce ozone emission from transportation-related sources.

In the proposed final rule, forty-five (45) areas across the country have been designated as nonattainment, down from 113 nonattainment areas in EPA’s previous designation. For states in the Southeast, only Alabama and Florida escaped having some area classified as nonattainment. A complete list of designations for the Southeast can be found here.

Click here to read the prepublication version of the Federal Register notice.

Fish and Wildlife Service Confirms White-Nose Syndrome in Federally Endangered Gray Bats

Thu, 07 Jun 2012 10:31:08 GMT

The U.S. Fish and Wildlife Service (FWS) recently confirmed the presence of white-nose syndrome in federally listed endangered gray bats (Myotis grisecens) in Hawkins and Montgomery counties in Tennessee. White-nose syndrome affects bat populations across eastern North America—in 19 states and four Canadian provinces—causing unusual behavior and leading to mortality rates reaching up to 100 percent in some instances.

While white-nose syndrome had previously been documented in six other hibernating bat species, including the federally listed endangered Indiana bat (Myotis sodalis), FWS’s confirmation is the first for the gray bats, federally listed as an endangered species in 1976. Gray bats are endangered in part due to their tendency to live in large numbers in a small number of caves, making them vulnerable to disturbance, particularly white-nose syndrome, which could spread rapidly amongst the population. While conservation measures, such as restricting access to gray bat hibernation and roosting sites, have been successful in recovering the species, white-nose syndrome poses a new threat.

Studies are currently being conducted to determine the impact on the species, and a joint effort between FWS, other federal and state agencies, tribes, researchers, universities, and other non-government organizations to research white-nose syndrome is underway. More information regarding white-nose syndrome is available here.

CAA Cooperative Federalism in Texas v. EPA

Fri, 17 Aug 2012 16:24:00 GMT

On August 13, 2012, the United States Court of Appeals for the Fifth Circuit granted the State of Texas’s petition to review EPA’s rejection of an eighteen-year-old revision to its Clean Air Act (“CAA”) State Implementation Plan (“SIP”). Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012). The SIP revision, which amended the State’s Minor New Source Review (“NSR”) regime, created a permitting program (the Texas Flexible Permit Program) allowing regulated entities to make modifications to their facilities without additional regulatory review so long as the resultant emissions increase would not exceed an aggregate limit specified in the permit. Sixteen years after Texas submitted this revision, the Environmental Protection Agency (“EPA”) disapproved it, “unravel[ing] approximately 140 permits issued by Texas under the revision’s terms . . . [and] requir[ing] regulated entities to qualify for pre-revision permits or risk federal sanctions.” Id. at 6.

The Fifth Circuit’s opinion analyzed the three reasons EPA gave for disapproving Texas’s program. First, EPA claimed that the program might allow major sources to evade review as it had “no express regulatory prohibition clearly limiting its use to Minor NSR and ha[d] no regulatory provision clearly prohibiting the use of this submitted Program from circumventing the Major NSR SIP requirements.” Id. at 6. While Texas’s permitting scheme affirmatively required compliance with the components of Major NSR and expressly deferred to the most stringent federal standards, EPA argued that “negative statements prohibiting major sources from avoiding Major NSR are required by Agency policy.” Id. at 9–10. The Court disagreed. The administrative record showed that EPA’s rejection of the program was based on the Agency’s preference for a different drafting style, not standards Congress provided in the CAA. EPA’s insistence on implementation of its policy preferences “disturbs the cooperative federalism that the CAA envisions” and “entangle[s] [EPA] in a matter beyond its proper concern . . . in the face of well-founded state objections.” Id. at 11–12. Moreover, EPA’s argument was not entitled to deference since it involved an interpretation of Texas state law, not federal law, and did not rely on EPA technical expertise. Id. at 8–9. The Fifth Circuit held that “[t]he standard for disapproving a SIP revision—that the revision would interfere with the CAA—surely requires more than the EPA’s bare conclusion.” Id. at 9.

Second, EPA disapproved the SIP’s monitoring, record keeping and recording (“MRR”) provisions as (1) conferring too much discretion on the director of the Texas Commission on Environmental Quality (“TCEQ”) Director, (2) being too vague and not replicable,” (3) not adequately resembling the federal Plant-wide Applicability Limits (PAL) program. Id. at 14. Concerning the question of director discretion, EPA pointed to two provisions in the Flexible Permit Program that required MRR standards to be written into each permit, rather than being “described in a one-size-fits-all manner in the SIP.” Id. While the TCEQ Director was granted significant discretion for purposes of monitoring and recordkeeping, the Court held that there was “no independent and authoritative standard in the CAA or its implementing regulations requiring that a state director’s discretion be cabined in the way that the EPA suggests.” Id. at 16. Again, “the EPA’s insistence on some undefined limit on a director’s discretion is, like the Agency’s insistence on a particular drafting style, based on a standard that the CAA does not empower the EPA to enforce.” 5 U.S.C. § 706(2).” Id. Furthermore, subsequent EPA actions failing to comment on this discretion or approving similar amendments in other SIP revisions make EPA’s position incoherent, policy or not. Id.

The Court also rejected EPA’s argument based on the MRR standards being non-repeatable. EPA failed to connect this standard to any specific requirements of the Clean Air Act. Id. at 17. Nor could EPA justify its argument based on the unusual complexity of the Flexible Permit Program. Without conceding that it was too complex, the Court held that while “EPA has the authority to ensure that a SIP is compliant with the CAA, . . . it cannot expand this congressionally delegated power based on ad-hoc and general assertions of a state program’s complexity.” Id. at 18. Similarly, EPA’s argument that “Texas [was] to enact something like PAL if it wants its Flexible Permit Program approved” triggered the Court’s inquiry into “whether the EPA’s determination constitute[d] an impermissible control-specific means or a permissible end goal.” Id. at 20. The Court concluded that EPA’s insistence on a particular control measure was “inconsistent with the principles of cooperative federalism that are an essential part of the CAA.” Id.

Finally, the Court turned to EPA’s third argument: “the methodology for calculating each emissions cap is not sufficiently clear and replicable, making it difficult to hold permit holders accountable for complying with their emissions caps.” Id. at 20. After reviewing the specific provisions of the Flexible Permit Program, the court found that EPA’s argument once again failed because “the CAA does not make the replicability the EPA desires a standard for disapproving a SIP revision, and the EPA has not explained how the method for calculating emissions caps otherwise relates to a CAA standard.” Id. at 22 (citing Luminant Generation Co., LLC. v. EPA, 675 F.3d 917, 932 (5th Cir. 2012)). Moreover, even the “clarity and replicability” requirement were enforceable against Texas, it was not clear that the Flexible Permit Program failed to satisfy that criteria.

Because EPA’s disapproval of Texas’s Flexible Permit Program transgressed the boundaries of cooperative federalism set forth by the CAA, it was arbitrary and capricious under the Administrative Procedure Act (“APA”). Therefore, the final rule was remanded to EPA for further consideration.

To read the opinion, click here.

Summary of August 17th AEMC Meeting

Mon, 20 Aug 2012 15:15:00 GMT

On August 17, 2012, the Alabama Environmental Management Commission ("AEMC") met to discuss certain environmental issues affecting the state.

Balch and Bingham attends every meeting and provides a summary. Click here for the summary of the August 17th AEMC meeting.

FWS Proposes to List Two Mussel Species as Endangered

Mon, 15 Oct 2012 15:48:00 GMT

On October 4, 2012, the U.S. Fish and Wildlife Service (Service) issued a proposed rule that would list the fluted kidneyshell (Ptychobranchus subtentum) and slabside pearlymussel (Pleuronaia dolabelloides) as endangered species under the federal Endangered Species Act. 77 Fed. Reg. 60,084 (Oct. 4, 2012). The Service also proposed to designate critical habitat for each species. Id.

These two species are “bivalve mussels and are endemic to the Cumberland and Tennessee River drainages.” Id. at 60,806. The fluted kidneyshell is a “relatively large mussel that reaches about 13 centimeters (cm)” in length, and the “shape of the shell is roughly oval elongate, and the solid, relatively heavy valves (shells) are moderately inflated.” Id. On the other hand, the slabside pearlymussel is a “moderately sized mussel that reaches about 9 cm” in length, and the “shape of the shell is subtriangular, and the very solid, heavy valves are moderately inflated.” Id. at 60,810. According to the Service, records indicate that in Alabama the fluted kidneyshell historically occupied the Tennessee River, the Flint River, Limestone Creek, the Elk River, and Shoal Creek, id. at 60,808–09, and the slabside pearlymussel occupied the Larkin Fork, Estill Fork, Hurricane Creek, Paint Rock River, Flint River, Flint Creek, Limestone Creek, Elk River, Sugar Creek, and Bear Creek. Id. at 60,810–11.

The Service has proposed critical habitat for the fluted kidneyshell that includes the Elk River in Limestone County, Alabama. Id. at 60,82. The proposed critical habitat for the slabside pearlymussel includes the Paint Rock River in Madison, Marshall, and Jackson Counties, the Elk River in Limestone County, and Bear Creek in Colbert County. Id. at 60,838–39.

Comments are due on December 3, 2012. A copy of the Federal Register notice is available here. A map of the proposed critical habitat for the fluted kidneyshell is available here, and a map of the proposed critical habitat for the slabside pearlymussel is available here.

Environmental Law Expectations for President Obama's 2nd Term

Thu, 08 Nov 2012 11:32:00 GMT

“Under the Obama Administration, EPA and the Corps of Engineers developed a guidance document that would expand Clean Water Act jurisdiction over wetlands. A draft of the document became public earlier this year. After some members of Congress and the regulated community raised concerns, the agencies postponed taking further action. However, the draft indicated that the agencies had neared the point of taking action. They may return to this matter in the near future.” – Rob Fowler, Partner, Birmingham

Check back soon for more 2nd-term predictions!

Environmental Law Expectations for President Obama's 2nd Term

Fri, 09 Nov 2012 11:16:36 GMT

“In 2011, President Obama asked EPA to withdraw a proposed ozone standard of 60 to 70 parts per billion (down from the 75 parts per billion adopted under President George W. Bush) until a scheduled reconsideration of pollution limits in 2013, citing the proposed rule’s burden on industry and local governments during a struggling economy. With a hard-fought election focused on jobs and the economy behind him, I expect Obama’s EPA to finalize regulations for ozone that it failed to complete in the first term.” – Chris Carron, Associate, Gulfport

Still more to come!

Environmental Law Expectations for President Obama's 2nd Term

Fri, 09 Nov 2012 15:25:00 GMT

“With Congress still divided, the enactment of new environmental legislation is just as unlikely now as it was before the election. However, EPA is expected to proceed with finalizing regulations that have been on hold, such as its New Source Performance Standard for greenhouse gas emissions from new power plants.” – Gretchen Frizzell, Associate, Birmingham

Thanks for following along as our attorneys shared their predictions for environmental law developments during the second Obama Administration!

Deepwater Horizon NRDA Trustees Announce Phase II Draft Early Restoration Plan & Environmental Review

Wed, 14 Nov 2012 15:32:00 GMT

The Deepwater Horizon Natural Resource Damage Assessment (NRDA) trustees (Trustees) have released the Deepwater Horizon Phase II Draft Early Restoration Plan & Environmental Review (DERP/ER) for public review and comment. The plan includes two proposed projects totaling about $9 million that focus on restoring nesting habitat for birds and sea turtles. Response efforts resulting from the Deepwater Horizon oil spill caused injuries to this natural habitat. The DERP/ER describes the second round of projects proposed to receive funding from the $1 billion BP committed to Early Restoration on April 21, 2011.

The DERP/ER describes two proposed projects for the second round of Early Restoration. These projects address coastal conservation for the purpose of restoring bird (avian) and sea turtle nesting habitats, which were injured by oil spill response operations. These projects are timed to enhance the bird and turtle nesting ground as the spring 2013 nesting season begins. Below is a brief description of each project:

· A Comprehensive Program for Enhanced Management of Avian Breeding Habitat Injuries by Response in the Florida Panhandle, Alabama and Mississippi. This project proposes to protect nesting habitat for beach-nesting birds from disturbance in order to restore habitat impaired by disturbance from oil spill response activities. It is to be conducted on sandy beaches in Escambia, Santa Rosa, Okaloosa, Walton, Bay, Gulf, and Franklin Counties, Florida; Bon Secour National Wildlife Refuge (NWR) in Baldwin and Mobile Counties, Alabama, and the Gulf Islands National Seashore (GUIS) – Mississippi District.

· Improving Habitat Injured by Spill Response: Restoring the Night Sky. This project proposes to reduce artificial lighting impacts on nesting habitat for sea turtles, specifically loggerhead turtles, to restore habitat impaired by disturbance from oil spill response activities. It is to be conducted on sandy beach public properties in Baldwin County, Alabama; and Escambia, Santa Rosa, Okaloosa, Walton, Bay, Gulf, and Franklin Counties, Florida.

NRDA is the process used by the Trustees to develop the public’s claim for natural resource damages against the party or parties responsible for a spill and to seek compensation for the harm done to natural resources and the services provided by those resources. For early restoration projects, the Deepwater Horizon NRDA trustees include the U.S. Department of Commerce, the U.S. Department of the Interior, U.S. Environmental Protection Agency, U.S. Department of Agriculture and state agencies from the five Gulf States—Florida, Alabama, Louisiana, Mississippi, and Texas.

Early Restoration projects represent an initial step toward fulfilling the responsible parties’ obligation to fund the complete restoration of injured natural resources. Early Restoration provides an opportunity to implement restoration projects agreed upon by the Trustees and BP under the Framework Agreement prior to the completion of the NRDA. The damage assessment will continue while Early Restoration planning is under way. BP and other responsible parties are obligated to compensate the public for the full scope of the natural resource injury caused by the Deepwater Horizon oil spill, including the cost of assessing such injury and planning for restoration.

The DERP/ER and a list of public repositories are available at www.gulfspillrestoration.noaa.gov and www.doi.gov/deepwaterhorizon.

LaGen to Pay Largest CAA Settlement in Louisiana History

Fri, 30 Nov 2012 15:03:12 GMT

EPA announced on November 21, 2012, that it had reached a proposed settlement agreement with Louisiana Generating (LaGen), a subsidiary of NRG Energy Inc., for violations that allegedly occurred in March 2000 at LaGen’s Big Cajun II coal-fired power plant in New Roads, Louisiana. EPA claimed that Big Cajun II’s units were modified and then operated without the proper permits, and that the units continued to operate without installing the best available control technology (BACT) that likely would have been required if a permit had been obtained. If finalized, the LaGen agreement will be the 24^th settlement obtained by EPA under its CAA Enforcement initiative.

The settlement requires LaGen to pay a civil fine of $3.5 million (with $1.75 million going to the State of Louisiana), spend $10.5 million on mitigation projects, and an additional $250 million in capital costs to reduce pollution as required by the decree. Specifically, LaGen will be forced to install new pollution controls, will likely convert the three units at Big Cajun II to natural gas, and will be subject to an annual emissions cap all in order to reach the emission reductions required in the decree: over 27,300 tons of emissions, including 20,000 tons of SO₂ and 7,300 tons of NO_X.

Mitigation projects proposed in the decree include installing solar photovoltaic panels at local schools, government-owned facilities, or other buildings; restoring and protecting land, watersheds, vegetation, and forests; funding the creation of charging stations for electric cars in South Louisiana; mitigation of nitrogen loading in the False River; and other projects.

For more information about the settlement agreement, click here.

Regulation of PM2.5 under the Clean Air Act

Thu, 17 Jan 2013 11:18:36 GMT

In Natural Resources Defense Council v. EPA, No. 08-125 (D.C. Cir. Jan. 4, 2013), the U.S. Court of Appeals for the D.C. Circuit ruled in favor of environmental groups challenging EPA’s regulation of “fine” particulate matter (“PM_2.5”), a broad class of chemicals—including sulfur oxides (“SO_X”), nitrous oxides (“NO_X”), and volatile organic chemicals (“VOC”)—found in the emissions of power plants, gasoline and diesel engines, and other industrial processes. The environmental groups had petitioned for review of two EPA rules governing the implementation of the national ambient air quality standard (“NAAQS”) for PM_2.5, claiming that EPA erred in promulgating the rules pursuant to the general implementation provisions of Subpart 1, Part D of Title I of the Clean Air Act (“CAA”) (42 U.S.C. §§ 7501–7509a) (“Subpart 1”), rather than the more specific “particulate matter” provisions of Subpart 4 (42 U.S.C. §§ 7513–7513b) (“Subpart 4”). Natural Res. Def. Council, slip. op. at 2–3. The D.C. Circuit agreed.

Part D of CAA Title I governs the requirements for state implementation plans in areas that have not attained compliance with the applicable NAAQS (i.e., “nonattainment areas”). Subpart 1 of Part D, added to the CAA in 1977, provides generalized requirements for all nonattainment areas. Among these requirements, EPA established a NAAQS for particulate matter. EPA revised the NAAQS in 1987, narrowing its application only to particles equal to or smaller than 10 micrometers (“PM₁₀”). This revised standard was intended to address the specific health concerns associated with smaller suspended particles. In 1990, Congress amended the CAA, adding specific provisions (Subpart 4) to govern nonattainment plan requirements for particulate matter. Where applicable, Subpart 4 superseded the more generalized requirements of Subpart 1.

In 1997, EPA again revised the PM NAAQS, setting a separate PM_2.5 standard while leaving the concurrent PM₁₀ standard in place. The revised standards were upheld by the D.C. Circuit in 2002, and EPA proposed a rule for implementing them in 2005. The proposed rule was finalized in two parts: SIP standards for PM_2.5, followed by a related New Source Review (“NSR”) implementation rule. In both final rules, EPA disregarded the specific implementation provisions of Subpart 4, instead following the more general implementation provisions of Subpart 1.

EPA argued that because “Subpart 4 repeatedly refers to PM₁₀— rather than to PM_2.5 or ‘particulate matter’ generally,” the statutory language “limits Subpart 4’s applicability to implementation of the current PM₁₀ standard.” Id. at 12. Because Subpart 4 is limited to the PM₁₀ NAAQS, the general implementation provisions of Subpart 1 govern the PM_2.5 rules. The D.C. Circuit disagreed. The court found that the definition of PM₁₀ in Subpart 4 covered all particulate matter equal to or smaller than 10 micrometers. Therefore, Subpart 4 would have expressly governed PM_2.5, not just PM₁₀, when implemented. Id. at 13. The statutory definition did not change when EPA subdivided PM₁₀ by its own regulations. Id. Further, the addition of Subpart 4 to the CAA in 1990 was specifically intended to limit EPA’s discretion under Subpart 1. Id. at 14 (citing Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 484 (2001)). In the D.C. Circuit’s opinion, “[i]t makes no sense then that the Congress would have wanted EPA to relax Subpart 4’s more stringent, nondiscretionary requirements for implementing the PM_2.5 standard at the same time EPA decided to strengthen the PM_2.5 standard itself based on ‘evidence from numerous health studies demonstrating that serious health effects are associated with exposures to elevated levels of PM_2.5.’” Id.

Because the two PM_2.5rules should have been implemented pursuant to Subpart 4, the D.C. Circuit remanded to EPA for re-promulgation. Click here to read the decision.