18 June 2019

Sidley Environmental Trends

Topics discussed this week include

  • Trump executive order directs agencies to reduce federal advisory committees
  • D.C. Circuit dismisses Clean Air Act Title V challenge
  • Michigan AG office drops pending Flint water crisis criminal charges
  • EPA updates FY2020-23 National Compliance Initiatives
  • Department of the Interior restores federal mineral lease fees to Obama-era levels
  • TVA agrees to close coal ash pit at Gallatin Fossil Plant

Trump executive order directs agencies to reduce federal advisory committees

By executive order issued June 14, 2019, the Trump administration has ordered federal agencies to review the need for each of its advisory committees established under the Federal Advisory Committee Act and eliminate at least one-third not required by statute. Each agency can receive a waiver only if the Director of the Office of Management and Budget (OMB) determines that one is “necessary for the delivery of essential services, for effective program delivery, or because it is otherwise warranted by the public interest.” The Environmental Protection Agency (EPA) currently has 22 such advisory committees, and along with all other agencies, EPA must provide OMB with its recommended advisory committee reductions by September 1.

D.C. Circuit dismisses Clean Air Act Title V challenge

On June 14, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a suit filed by the Sierra Club challenging an operating permit issued by the Utah Department of Environmental Quality to the coal-fired Hunter Power Plant in Emery County, Utah, under Title V of the Clean Air Act. EPA had previously denied the Sierra Club’s petition urging EPA to object to the permit renewal, without examining the merits of Sierra Club’s claim. The D.C. Circuit dismissed the appeal on jurisdictional grounds, finding that because EPA’s permitting decision was isolated to the single plant and did not implicate matters of a national scope, the D.C. Circuit was not a permissible venue for the appeal under the Clean Air Act. The plant received a preconstruction permit under Utah’s EPA-approved Title I preconstruction permit program in the late 1990s in advance of planned construction projects, after the state determined that the projects were not classified as major modifications to a major source. After Utah published a proposed renewal Title V permit for the plant in September 2015, the Sierra Club argued that because the prior construction projects resulted in increased emissions, the preconstruction permit was issued in error and did not include all applicable requirements for major modifications to a major source.

In reviewing the Sierra Club’s petition, EPA stated that it would neither review the substantive merits of the Sierra Club’s petition nor revisit EPA’s prior review of the preconstruction permit in 1997. While the Sierra Club argued that EPA’s decision constituted a change to national policy, which necessitates formal notice-and-comment rulemaking, the D.C. Circuit disagreed, finding that EPA’s order denying the petition was not nationally applicable and limited to the Administrator’s interpretation of Clean Air Act requirements as applied to the Hunter Power Plant. Based on this ruling, the merits of the underlying EPA decision may be reviewed only by the Tenth Circuit, where the appeal is now pending.

Michigan AG office drops pending Flint water crisis criminal charges

On June 13, prosecutors from Michigan’s Attorney General’s office dropped previously filed criminal charges against all remaining defendants related to the 2014 water contamination crisis in Flint, Michigan. As reported by multiple news outlets, including the New York Times and Detroit Free Press, charges against eight state and local officials awaiting trial were dropped; however, prosecutors left open the possibility of recharging these officials at a later date. Previously, seven other state and local officials had pleaded no contest to misdemeanors. The prosecutors’ decision comes after the AG’s office switched from Republican to Democratic control, with the new administration suggesting that their predecessors had not conducted an adequate investigation.

EPA updates FY2020-23 National Compliance Initiatives

As previously reported here in April, EPA released its proposed FY2020-23 National Compliance Initiatives for public comment. On June 7, EPA completed its review and selected six initiatives to be led by EPA’s enforcement program focusing on improving air quality, ensuring clean and safe water and reducing risk from hazardous chemicals. Of the six initiatives, four are modified from the prior program cycle: creating cleaner air for communities by reducing excess emissions from stationary sources; reducing hazardous air emissions from hazardous waste facilities; reducing significant noncompliance with national pollutant discharge elimination system permits; and reducing risks of accidental releases at industrial and chemical facilities. Following the public comment period, EPA added two new initiatives: stopping aftermarket defeat devices for vehicles and engines and reducing noncompliance with drinking water standards at community water systems. With these two additions, EPA is signaling its intent to increase its enforcement efforts under Title II of the Clean Air Act and the Safe Drinking Water Act.

Department of the Interior restores federal mineral lease fees to Obama-era levels

The Department of the Interior’s Office of Natural Resources Revenue (ONRR) announced on June 13 that all federal oil, gas and coal lessees must pay any underpaid royalties due to the federal government from January 1, 2017, forward by January 1, 2020. The announcement follows a March 29, 2019, ruling from the U.S. District Court for the Northern District of California vacating ONRR’s repeal of an Obama administration rule from 2016, the Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Reform rule. The district court had vacated the repeal, finding that ONRR failed to comply with the Administrative Procedure Act and provide an adequate, reasoned explanation for its action. ONRR is evaluating additional rulemaking in light of the district court’s ruling, but until that time, the revised royalties put in place by the Obama administration are now in effect.

TVA agrees to close coal ash pit at Gallatin Fossil Plant

On June 13, Tennessee’s Department of Environment and Conservation (TDEC), along with the Tennessee Clean Water Network and Tennessee Scenic Rivers Association, and the Tennessee Valley Authority (TVA) filed a settlement agreement in Tennessee state court following years of litigation related to alleged groundwater pollution at TVA’s coal-fired Gallatin Fossil Plant along the Cumberland River, northeast of Nashville. Under the settlement agreement, TVA will remove approximately 12 million cubic yards of coal ash stored in unlined pits at the plant and either recycle the material or store it in a lined, permitted landfill. Following a 60-day notice letter sent to TVA from the Southern Environmental Law Center in 2014, TDEC brought suit against TVA alleging that these unlined pits are leaking and polluting both groundwater and the Cumberland River. The settlement agreement is pending court approval.

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