12 February 2018

Sidley Environmental Trends

Topics discussed this week include:

  • DOJ and EPA issue guidance documents with implications for environmental enforcement.
  • EPA ends “once-in always-in” MACT policy.
  • EPA delays applicability of WOTUS rule, prompting lawsuits.
  • EPA issues proposed ROD Amendment for $236 million cleanup of West Lake Landfill Superfund Site.
  • EPA releases FY 2017 enforcement results.
  • Ninth Circuit holds that discharges through groundwater to waters of the United States are regulated under the Clean Water Act.
  • White House infrastructure plan proposes major changes to NEPA permitting process for projects.

DOJ and EPA issue guidance documents with implications for environmental enforcement. The U.S. Environmental Protection Agency (EPA) and Department of Justice (DOJ) recently issued three guidance documents that will affect environmental enforcement.

  • Division guidance on settlement payments: On Jan. 9, Jeffrey Wood, DOJ’s Environment and Natural Resources Division (ENRD) Acting Assistant Attorney General, issued guidance describing when an ENRD settlement may provide for payments to third parties to directly remedy harm to the environment. The guidance interprets further an exception in a June 2017 DOJ-wide memorandum banning most third-party payments in DOJ settlements. It also expressly affirms that ENRD settlements can continue to include supplemental environmental projects undertaken directly by the defendant as long as they are otherwise consistent with existing EPA policy.
  • EPA supports state-federal coordination: The second guidance document is a Jan. 22 memorandum from Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance, on enhancing coordination between EPA regions and states on civil enforcement efforts. Consistent with EPA Administrator Scott Pruitt’s desire to promote federal-state cooperation, the guidance provides for periodic joint planning sessions between regions and states and requires EPA to generally defer to states regarding inspections and enforcement under their delegated programs. For more detail, read this Sidley Update.
  • DOJ limits reliance on federal agency guidance: The final guidance document is a Jan. 25 memorandum from Associate Attorney General Rachel Brand. This memorandum bars DOJ from using noncompliance with guidance documents as a basis for proving violations of law in DOJ’s civil enforcement cases. For more detail, see this further Sidley Update.

EPA ends “once-in always-in” MACT policy. On Jan. 25, William Wehrum, the Assistant Administrator for EPA’s Office of Air and Radiation, issued a guidance memorandum reversing EPA’s “once-in always-in” policy, which was based on a 1995 guidance document. The once-in always-in policy had meant that after an existing source qualified as a major source under Section 112 of the Clean Air Act, it had to continue meeting major source maximum available control technology (MACT) standards for hazardous air pollutants (HAP), even if it later reduced its emissions below the major source threshold. Under the new policy, a source can avoid becoming a major source by taking an enforceable permit limit for HAP emissions at any time. The source would instead be an area source, subject to less stringent regulation under Section 112. We discussed this guidance further here.

EPA delays applicability of WOTUS rule, prompting lawsuits. On Feb. 6, EPA published a final rule delaying until Feb. 6, 2020, the applicability of the 2015 EPA and U.S. Army Corps of Engineers rule that had attempted to define the jurisdictional term “waters of the United States” under the Clean Water Act (WOTUS rule). The WOTUS rule had been stayed in 13 states in 2015 in challenges brought in the U.S. District Court for the District of North Dakota and nationwide in a challenge brought directly in the Sixth Circuit. However, on Jan. 22, the Supreme Court decided that all challenges to the WOTUS rule had to first be filed in district court. To maintain the status quo while it considers rescinding and replacing the WOTUS rule, EPA decided to delay its applicability date for two more years. A coalition of states and the District of Columbia as well as environmental nongovernmental organizations have brought multiple suits against the EPA and the Department of the Army over the delayed applicability date.

EPA issues proposed ROD Amendment for $236 million cleanup of West Lake Landfill Superfund Site. EPA recently issued a proposed record of decision (ROD) amendment for the remediation of Operable Unit 1 (OU-1) of the West Lake Landfill Superfund Site (West Lake) in Bridgeton, Missouri. West Lake is an approximately 200-acre, inactive solid waste disposal facility at which roughly 8,700 tons of radioactive leached barium sulfate residues left over from the Manhattan Project were reportedly stockpiled and used in landfilling operations. OU-1 is the affected soil and landfilled wastes portion of the site. In 2008, EPA issued a ROD selecting a cap-in-place remedy for OU-1 before committing to studying OU-1 remedial alternatives further. The proposed ROD amendment calls for excavation of radiological material over 52.8 picoCuries per liter down to a 16-foot depth, followed by the installation of an engineered cover, at a estimated cost of $236 million. EPA is taking comment on the proposed ROD amendment through March 22. West Lake is one of the most high-profile Superfund sites in the country and is on EPA’s list of sites targeted for immediate, intense action.

EPA releases FY 2017 enforcement results. EPA recently issued its annual summary of enforcement results for FY 2017. During FY 2017, DOJ and EPA secured $2.98 billion in environmental criminal fines, restitution and mitigation, and EPA (and DOJ, for civil judicial enforcement) assessed almost $1.6 billion in federal administrative and civil judicial penalties. In both cases, the majority of these fines and penalties were attributable to criminal and civil enforcement against Volkswagen for alleged Clean Air Act mobile source violations. The value private parties committed to clean up Superfund sites also increased to over $1.2 billion in FY 2017. Because FY 2017 ran from October 2016 through September 2017, it includes enforcement actions undertaken by both the Obama and the Trump Administrations.

Ninth Circuit holds that discharges through groundwater to waters of the United States are regulated under the Clean Water Act. In a recent decision in Hawai’i Wildlife Fund v. County of Maui, the Ninth Circuit became the first federal circuit court of appeal to hold that discharges through groundwater to waters of the United States are covered by the Clean Water Act. Section 301 of the Clean Water Act prohibits the discharge of a pollutant from a point source to the waters of the United States unless in compliance with other provisions of the Clean Water Act, such as the National Pollutant Discharge Elimination System permitting program. In County of Maui, the Ninth Circuit held that the flow of pollutants disposed into underground effluent disposal wells through the groundwater into the Pacific Ocean constituted a prohibited discharge because the pollutants traveled from “point sources” (the wells) to navigable waters (the Pacific Ocean). The Ninth Circuit determined that indirect discharges to navigable waters are covered by the Clean Water Act as long as “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water[s].” Two circuit courts, the Fifth and Seventh Circuits, have previously held that discharges through groundwater to a water of the United States are not regulated under the Clean Water Act or Oil Pollution Act, and the district courts have split on this issue.

White House infrastructure plan proposes major changes to NEPA permitting process for projects. On Feb. 12, the Trump Administration released its proposed plan for addressing the nation’s infrastructure needs. The plan requests $200 billion in federal funds, with a goal of spurring over $1.5 trillion in infrastructure investments by other local, state, tribal and private partners. One of the plan’s goals is to reduce regulatory barriers for infrastructure projects, which includes reforms to the National Environmental Policy Act (NEPA) review process. Among other suggested reforms, the plan calls for firm deadlines of 21 months for lead agencies to complete their environmental reviews of proposed projects and 3 months for federal (and some state) agencies to issue permit decisions after the lead agencies have completed their reviews. In addition, the plan calls for the Council on Environmental Quality to update its decades-old regulations on NEPA in order to streamline the NEPA process and for Congress to amend Section 309 of the Clean Air Act, which requires that EPA review and publish comments on most environmental impact statements issued by other agencies.

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