Happy New Year. I hope that you all had a safe, restful and pleasant holiday season. While we face distressing situations right in front of us let’s have confidence that 2021 will see improved outcomes than we’ve experienced last year.
I thought rather than starting out 2021 with the BIG picture I’d start with the SMALL picture. As I’ve written about in the past, obscure things that happen and are not reported about in a highly publicized way that will have huge consequences on our lives in so far as the water we drink and the air we breath that will impact public health in major ways.
Two items that I’ve written about previously are updated here today. First the Supreme Court decision about regulating contaminated water flowing into the public domain. Secondly, the amount of pollution that is allowed to be emitted into our air.
Regarding the Supreme Court decision about regulating clean water here’s the link to my previous article from last May.
Now the EPA is drafting language to turn the Court’s decision into rules.
“EPA could face criticism that it is trying to circumvent a high-profile Clean Water Act ruling through new draft guidance that interprets the Supreme Court opinion…
The interpretation of that court ruling could have sweeping implications for whether — and how — federal regulators oversee and curb pollution from facilities like coal ash ponds, waste lagoons and livestock operations.”
If you are interested in the details and nuances of what all this means read the whole article at the end of my narrative. But here’s the gist…
“EPA’s guidance adds new factors to the test the court laid out — additions that may amount to loopholes…
The guidance also ignores the court’s plain emphasis that pollution from facilities that predictably travels through groundwater into surface waters should be regulated by the Clean Water Act, he said…
The Trump administration is “trying to put some meat on the bones of the Supreme Court’s Maui opinion in a way that might limit the ability to regulate discharges via groundwater,””
In similar fashion, how the EPA manipulates regulations relative to the Clean Air Act reveals how laws actually get implemented is subject to the Administration that does the rule making. This once again reiterates the fact that elections matter and who is running the government has direct impact on your life and health.
In June 2018 I wrote about this and updated it last July:
“Disputing objections that more pollution will result, EPA has doubled down on easing one facet of a key industrial air permitting policy.
In a final rule signed yesterday, EPA formally reworked the two-step process for deciding whether an expansion or other upgrade at factories and other plants would result in a significant emissions increase triggering the need for a New Source Review pre-construction permit, possibly accompanied by added pollution control requirements…
The rule is the latest in a series of piecemeal steps taken by the Trump administration to relax application of the New Source Review program, a frequent target of business complaints that its complexities are such that they discourage upgrades that could cut emissions…
Environmental groups, who view New Source Review as a bedrock Clean Air Act safeguard, had said the change would make it easier for industries to sidestep NSR permitting requirements. Instead, major polluters could keep aging plants in business and increase emissions “without installing modern pollution controls,” Environmental Defense Fund attorneys wrote in comments following publication of the draft rule last year (Greenwire, Aug. 2, 2019).”
As we head into a new year and new Administration I will attempt to continue to keep you informed of the environmental news that has an impact on tour lives that may not, at least at this time, be reported by the mass media but is none the less critical.
Noon on January 20th can’t come soon enough.
CLEAN WATER ACT
Leaked
Draft: EPA Aims to Clarify Supreme Court Maui Ruling
December 3, 2020
Hannah Northey and Pamela King, E&E Reporters
EPA could face criticism that it is trying to circumvent a high-profile Clean Water Act ruling through new draft guidance that interprets the Supreme Court opinion.
In a draft memo reviewed by E&E News, EPA Assistant Administrator for the Office of Water David Ross aimed to provide some clarity to industry following County of Maui v. Hawaii Wildlife Fund, a case in which the Supreme Court offered a test to probe whether federal permits are required for pollution that moves through groundwater before spewing into the Pacific Ocean.
In a 6-3 opinion led by Justice Stephen Breyer, the court found the question to be answered is whether pollution is “the functional equivalent of a direct discharge from the point source into navigable waters” — an outcome that industry attorneys said would create a new era of regulatory uncertainty (Greenwire, April 23).
The interpretation of that court ruling could have sweeping implications for whether — and how — federal regulators oversee and curb pollution from facilities like coal ash ponds, waste lagoons and livestock operations.
The justices said such a determination hinges on several factors, including time and the distance the pollution travels, as well as the nature of the material through which the contaminants move. Some indirect paths, the court wrote, may have the ability to dilute or chemically alter pollution that travels through them.
EPA’s guidance adds new factors to the test the court laid out — additions that may amount to loopholes, said the Natural Resources Defense Council’s director of federal water policy, Jon Devine, who reviewed the document.
For example, he noted the guidance calls on permit holders to consider the type of facility where the pollution is generated, a move that could put a “thumb on the scale” against requiring permits at facilities like poorly designed waste pits and lagoons across the country.
“If they’re able to avoid Clean Water Act scrutiny for the pollution they cause to rivers and lakes that they’re near, it’s just contrary to the purpose of the law,” Devine said.
The guidance also ignores the court’s plain emphasis that pollution from facilities that predictably travels through groundwater into surface waters should be regulated by the Clean Water Act, he said.
“It sets up a series of tests such that most discharge through groundwater are unlikely to require permitting,” said Devine.
Former Justice Department senior trial attorney Larry Liebesman said he didn’t see loopholes in the memo, but he noted that EPA could face scrutiny for its decision to issue a guidance document, rather than engage in formal rulemaking. Then again, he said, the Supreme Court did suggest that EPA guidance would be appropriate.
The Trump administration is “trying to put some meat on the bones of the Supreme Court’s Maui opinion in a way that might limit the ability to regulate discharges via groundwater,” said Liebesman, who is now a senior adviser at the consulting firm Dawson & Associates.
Because the document is guidance, rather than a rule, the incoming Biden administration would have an easier time reversing EPA’s interpretation, especially since the Trump administration has a limited amount of time to finalize the document. But Holland & Hart partner Ashley Peck questioned whether the president-elect would prioritize such a change.
“The memorandum does not establish bright line rules or exemptions and instead recognizes that the totality of the circumstances must be examined in determining whether there is a functional equivalent of a discharge,” she said.
When asked about the document, an EPA spokesperson said draft guidance was submitted to the Office of Management and Budget for interagency review on Nov. 20 and is currently under review. The draft, the spokesperson said, is not final and is subject to changes and reconsideration as part of the interagency review.
The EPA spokesperson said it would be “inappropriate and misleading to report” on a draft that’s not yet final and misleading to the public, and could undercut good governance of such a review.
EPA guidance
In the draft memo, EPA offers several recommendations to the regulated community and permitting authorities on how to implement the Maui opinion as part of the National Pollutant Discharge Elimination System (NPDES) permit program.
Ross clarifies that an actual discharge of a pollutant from a point source to a water of the United States triggers the duty to apply for a NPDES permit.
But the memo goes on to say that a “mere suggestion, assertion or allegation that a point source discharge of pollutants is or may be reaching a water of the United States via groundwater without supporting information or evidence or documentation is not sufficient to trigger the duty to apply for, or the requirement to obtain, a NPDES permit.”
EPA also appears to shift the responsibility off polluters, writing that “neither the ‘functional equivalent’ analysis set out by the Supreme Court nor the CWA itself requires a facility owner or operator or a permitting agency to prove the absence of a discharge.”
A second requirement for federal oversight: Discharges of pollutants that reach a water of the U.S. must originate from a point source.
EPA goes on to identify five “principal areas of inquiry” to inform any “functional equivalent” analysis, including the design of the system or facility that discharged the pollution, and characteristics of the subsurface aquifer and hydrogeology through which the pollutant travels.
Other factors include the time and distance it takes for the pollution to travel from the facility to the U.S. waters, the chemical composition and concentration of the pollutant upon leaving the point source compared with when it reaches the receiving water of the United States, and, lastly, the discharge location in the receiving water of the United States.
Ross also emphasized that while its guidance isn’t identical to that of the Supreme Court, its areas of inquiry are “consistent with and supplement the factors identified in Maui.”
States’ role
The guidance document states that the Supreme Court’s ruling in Maui should not be read to expand federal or state permitting regimes “in any meaningful way.”
EPA “recommends that this guidance be used to ensure the NPDES permit program remains focused on addressing direct discharges of pollutants to waters of the United States and those rare occasions where a discharge of pollutants through groundwater and into a water of the United States is truly the ‘functional equivalent’ of a direct discharge to jurisdictional surface waters,” the document says.
The argument echoes claims an industry attorney made in a recent case before the 7th U.S. Circuit Court of Appeals that explored how the lower courts should interpret the “functional equivalent” standard.
Gibson, Dunn & Crutcher LLP partner Allyson Ho made the case that Maui should not be read to extend the scope of the Clean Water Act to pollution that leaked from coal ash ponds at Illinois’ shuttered Vermilion Power Station through groundwater and into a nearby river (E&E News PM, Nov. 13).
She said Breyer’s opinion “sets forth a command” that his test is not meant to override state permitting authority.
Liebesman agreed that Breyer was “very sensitive” about the relationship between state and federal permitting requirements.
“I can certainly see where an argument might be made that an expansive reading of Mauicould be seen as intruding on those principles and violating Justice Breyer’s interpretation,” he said.
Reporter Ariel Wittenberg contributed.
AIR POLLUTION
EPA Eases Permitting for Power Plant and Factory Upgrades
Friday, October 23, 2020
Disputing objections that more pollution will result, EPA has doubled down on easing one facet of a key industrial air permitting policy.
Whatever deregulatory force the change may have, however, could be sapped by an opt-out clause for some state and local air agencies.
In a final rule signed yesterday, EPA formally reworked the two-step process for deciding whether an expansion or other upgrade at factories and other plants would result in a significant emissions increase triggering the need for a New Source Review pre-construction permit, possibly accompanied by added pollution control requirements.
Typically, the first stage has involved determining whether the project would by itself lead to a significant pollution increase. If that’s found to be the case, the second stage takes a look at whether there would be an overall emissions boost once all other increases or decreases at the plant over the preceding few years are factored in. Under the revised approach, welcomed by industry and opposed by environmentalists, companies can simultaneously consider both the expected emissions increases and decreases during the first stage, according to an EPA summary.
The rule is the latest in a series of piecemeal steps taken by the Trump administration to relax application of the New Source Review program, a frequent target of business complaints that its complexities are such that they discourage upgrades that could cut emissions.
“This rule incentivizes installation of new technologies that can both improve operator efficiency and reduce air pollution,” EPA Administrator Andrew Wheeler said in a news release yesterday.
Praising the move as sensible were representatives of the paper and wood products industries, perhaps the most vocal advocates for changes to the New Source Review regimen.
The American Wood Council “is encouraged that NSR will focus on truly significant projects by reducing regulatory hurdles for mills,” President and CEO Jackson Morrill said in a statement. Major enterprises like Boeing Co., Phillips 66 Co. and U.S. Steel Corp. had also weighed in directly on the plan, according to filings in the regulatory docket.
Environmental groups, who view New Source Review as a bedrock Clean Air Act safeguard, had said the change would make it easier for industries to sidestep NSR permitting requirements. Instead, major polluters could keep aging plants in business and increase emissions “without installing modern pollution controls,” Environmental Defense Fund attorneys wrote in comments following publication of the draft rule last year (Greenwire, Aug. 2, 2019).
EPA officials made no attempt to comprehensively gauge the potential impact. The final rule is “only a clarification” of existing regulations, the final rule says, adding that there is no reason to believe it will lead to “significant and overall emissions increases as a result of construction at stationary sources.”
Under former Administrator Scott Pruitt, EPA had initially adopted the revised policy via a nonbinding memorandum in early 2018 (E&E News PM, March 13, 2018).
The Environmental Defense Fund and two other groups challenged that memo soon after in a lawsuit filed with the U.S. Court of Appeals for the District of Columbia Circuit (Greenwire, June 5, 2018). Proceedings in that litigation have since mostly been on hold in anticipation of completion of the newly concluded rulemaking.
But the new rule says that only states with federally “delegated” authority to issue a common type of New Source Review permit are now bound by the change; in a footnote, EPA listed just seven states in that category. Others that instead have incorporated New Source Review permitting requirements into EPA-approved “state implementation plans” don’t have “to modify their programs to account for this final rule and may continue to implement their current program without change,” the agency said in the summary released yesterday.
An EPA spokeswoman could not immediately say today how many air agencies fall in that latter category. At the National Association of Clean Air Agencies, which represents most state and local regulators and had urged flexibility, Executive Director Miles Keogh said in an email that it was difficult to predict how many might adopt the new “project emissions accounting” approach.
“Some will do it the old way, some the new way,” Keogh said.
As E&E News reported earlier this week, David Harlow, a onetime industry attorney who is now senior counsel in EPA’s Office of Air and Radiation, is responsible for overseeing biweekly calls to coordinate activity on New Source Review rules and related activities (Greenwire, Oct. 20).
Among other changes made since President Trump took office are a redefinition of “ambient air” for regulatory purposes and an end to challenging company forecasts of the emissions effects from specific projects. At least on paper, EPA still plans to finalize by year’s end a much more sweeping overhaul of NSR applicability requirements that was originally tied to the Affordable Clean Energy rule, but there’s been no recent sign of activity on that front.
Like other New Source Review revisions launched during the tenure of former EPA air chief Bill Wehrum, who left the agency in June of last year, the project emissions accounting change finalized yesterday harked back to Wehrum’s earlier stint at the agency during George W. Bush’s administration.
In the draft version released last year, EPA withdrew a related 2006 proposal that had been left hanging ever since. In an email today, the agency said no further action on that front was necessary in the final version.
