October 4, 2010
Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation. Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.
On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance. The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.
In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings. Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.
In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form. EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change. For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.
As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011. The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.
Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed. Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.
Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion. Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.
Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
June 2, 2010
In Coalition of Battery Recyclers Association v. EPA, 2010 WL 1929879 (May 14, 2010), the D.C. Circuit recently upheld an EPA rule revising the primary and secondary National Ambient Air Quality Standards (NAAQS) for air-borne lead (Pb) pollution against challenges by industry representatives. The case arose from consolidated petitions for review under the Administrative Procedure Act filed by two industry representatives alleging that the revised standards were overprotective. The circuit panel, Judge Rogers writing, rejected the petitions, holding that the new standards were supported by substantial record evidence and were not arbitrary and capricious.
Sections 108 and 109 of the Clean Air Act (CAA) require the EPA administrator to establish NAAQSs for air pollutants that are found to “endanger public health or welfare.”[1] Health impacts associated with airborne lead exposure include anemia, slowed physiological development, and IQ loss.[2] EPA began regulating lead under the CAA since 1978, but did not revise its NAAQSs for the pollutant for three decades.[3]
On November 12, 2008, EPA issued a final rule that tightened primary and secondary NAAQS for lead to .15 µg/m3.[4] The revisions were responsive to scientific evidence that the previous standards were inadequate to protect against certain health risks, particularly neurological effects in children.[5] While the previous NAAQS for lead were calculated by focusing on a “target population mean blood lead level,” the 2008 aims at reducing mean health effects on children from lead below an “allowable air-related IQ loss” target of 2 IQ points.[6] EPA calculated that this goal demands a .15 µg/m3 standard. The rule also revised the averaging time to a 3-month period with a maximum and established revised data handling procedures.[7]
Petitioners’ first set of arguments focused on the adequacy of the studies EPA cited in the record to support its selection of a .15 µg/m3 standard. They contended that “(A) EPA did not provide sufficient record support for basing the standard on preventing a decrease of more than two IQ points, (B) reliance on particular studies relating blood lead levels and IQ was arbitrary and capricious, and (C) selection of a lead standard of 0.15 μg/m3 was arbitrary and capricious when measured as an average over a rolling three-month period.”[8] The court found that the record did support EPA’s conclusions, notwithstanding admitted imprecision in its methodology, given that “by its nature the finding of risk is uncertain and the Administrator must use his [or her] discretion to meet the statutory mandate.”[9]
Petitioners also alleged that EPA failed to respond to comments or to disclose information relevant to its reliance on one study (the Lanphear study) for evidence of the effects of lead on IQ at blood lead levels below 10 μg/dL and for the nonlinearity of these effects.[10] The court found that EPA had adequately responded to comments and complied with necessary disclosure requirements.
Finally, petitioner Doe Run Resources, Inc. separately challenged EPA’s legal conclusion that it lacked statutory authority under the CAA to consider the natural presence of lead sulfides in determining compliance with the lead NAAQS.[11] Applying the two-step Chevron analysis, the court concluded at step one that EPA’s statutory mandate to designate “any area that does not meet [NAAQS]” for a given pollutant to be in “nonattainment” clearly prohibited EPA from considering local bioavailability of lead sulfides in its analysis.[12] The court added that even if the CAA is ambiguous, EPA’s interpretation that it lacks authority effectively “to waive NAAQS attainment requirements in the manner requested by Doe Run” was reasonable, and therefore permissible under Chevron step two.[13]
The Battery Recyclers decision has several implications. Aside from ensuring the continued existence of EPA’s new lead standards, it confirms EPA’s ability, under the CAA, to select NAAQSs designed specially to protect “sensitive populations” (here, young children) as well as its ability, in rulemaking, to rely on reasonable methods of approximation (such as IQ measures and extrapolations of data plots) to fulfill its statutory mandate even when absolute scientific precision is impracticable.
Dan Mach is a summer associate at Sive, Paget & Riesel, PC.
[1] 42 U.S.C. 7408(a)(1) and 7409(b).
[2] 73 Fed. Reg. 66964, 66983.
[3] Id. at 66983.
[4] Id. at 66965.
[5] Id. at 66983-84.
[6] Coalition of Battery Recyclers Association v. EPA, No. 09-1011, slip op. at 4-5 (D.C. Cir. May 14, 2010) (“Battery Recyclers”).
[7] 73 Fed. Reg. at 67012-20.
[8] Battery Recyclers, slip op. at 6.
[9] Id. at 13 (citing Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1165 (1987)).
[10] Battery Recyclers, slip op. at 16-17.
[11] Id. at 18-19.
[12] Id. at 19-20.
[13] Id. at 20.
May 13, 2010
Since President Obama announced his intention to nominate Elena Kagan for the U.S. Supreme Court much attention and speculation has centered around Kagan’s opinions on various issues, including her environmental record. Some have observed that we know “nothing” about her environmental preferences except a preference for executive power, and a notable role in creating the environmental law clinic at Harvard Law School. The clinic, a greening initiative at the school, and the hiring of professor Jody Freeman, a leading environmental law scholar, suggest that Kagan supports environmental protection and climate regulation as a general matter. But it is not quite accurate to say that Kagan, as has been suggested, “hasn’t written or said much at all about climate change or the government’s role in regulating clean air and water or protecting land and species,” because her writing on administrative law provides some clues as to how she would approach EPA’s actions.
In fact, Kagan has publicly taken a significant position on administrative law that, if implemented, could have important practical implications for environmental regulation.
In a lengthy and nuanced 2001 law review article co-authored with David J. Barron,[1] the authors argue for a new rule of law defining when courts should defer to decisions made by administrative agencies. Because much of environmental law is implemented through administrative agencies, Kagan’s view, if adopted by courts, could have far reaching implications.
Kagan’s argument seeks to limit the application of a powerful doctrine of federal administrative law known as “Chevron deference”[2] to only those administrative decisions where the specific decisionmaker appointed by Congress actually makes the decision – and not to the determinations of lower-level decisionmakers in the agency acting pursuant to delegated authority. Chevron is considered a rule of judicial restraint, whereby courts will not second-guess an agency’s reasonable interpretation of ambiguities in a statute it is charged with enforcing, absent convincing circumstances. Notably, it was Justice Stevens, who Kagan would replace on the bench, who authored the opinion in the Chevron case, which is the most cited in Supreme Court history.
The approach suggested in Kagan’s article would mean that generally only the head of an administrative agency, such as the administrator of EPA, would receive Chevron deference in court for their decisions.[3] Often in current practice Congress will direct an agency administrator to make a decision, and this official will in turn delegate authority to lower officials. Decisions made pursuant to delegated authority within the agency would not receive Chevron deference under Kagan’s proposed rule. Kagan’s approach builds on prior caselaw, including United States v. Mead Corp., 533 U.S. 218 (2001), but her primary focus on the identity of the decisionmaker is a significant departure from, and extension of, these prior cases.[4]
This change, if ultimately adopted by the Supreme Court, would be significant, because, as Kagan points out, “the vast majority of agency action [other than formal rulemaking, etc.] is issued under the name of these [lower-level] officials.”[5] Under Kagan’s approach, all of these decisions would be subject to potential second-guessing in court, under a less-deferential standard known as Skidmore deference.[6]
The possible effects of Kagan’s approach could be to:
- Strengthen the presumption that a head administrator’s decision, based on legitimate exercises of their authority, is sound;[7]
- Weaken the authority of lower agency officials, holding them to a higher standard; and
- Increase the administrative workload for higher-level decisionmakers in an agency.
Limiting the application of the Chevron deference doctrine could weaken the authority of most agency administrative personnel. Lower-level decisionmakers could not, under Kagan’s rule, seek to defend their decisions by arguing they are entitled to the special deference given to statutory interpretation, without prior action from a higher-level decisionmaker. This rule would also likely have the beneficial effect of reducing the potential for ad-hoc decisionmaking at lower levels within an agency, when clear interpretations have not been provided from higher officials.
However, if Kagan’s approach were adopted by the Supreme Court, agencies may respond by making all important statutory interpretation decisions through its administrator. Thus, a new regulatory dynamic could emerge whereby an agency, in an effort to secure judicial deference for its top priorities, routes these decisions through their primary decisionmaker for substantive review and adoption.[8]
While much has been said about the lack of a paper trail to discern the type of justice that Kagan would be, she plainly has taken a clear and firm position on a seminal administrative law principle, and suggests a potential to reexamine doctrines of judicial deference to regulation, including environmental regulation. Of course, her article was written from the perspective of a law professor, not a judge, so Kagan’s overall approach to respecting Supreme Court precedent would also play a prominent role in deciding whether she would press her suggested approach once she ascends to the bench.
[1] David J. Barron and Elena Kagan, Chevron’s Nondelegation Doctrine, The Supreme Court Review, Vol. 2001, at 201-265 (2001) (“Barron & Kagan”).
[2] Named after the Supreme Court case of Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) (“Chevron“).
[3] Congress could name another agency official, but in practice generally agency heads, or the President, are named by statute as the relevant decisionmaker.
[4] According to Kagan, the court in Mead looked to how “general” and “formal” an administrative decision is to evaluate whether Chevron may apply. Barron & Kagan at 234. Kagan argues that “accountable and disciplined policymaking” may be better promoted by focusing on who makes the decision—i.e., the statutory delegee named by Congress—as opposed to how it is made. Id. at 204, 238.
[5] Barron & Kagan at 237.
[6] Barron & Kagan at 236.
[7] Barron & Kagan at 263 (“[a]n agency should not have to conform its decision making to some idealized notion of either general lawmaking or courtlike formality to receive deference”).
[8] Barron & Kagan at 262.
February 23, 2010
On February 18, 2010, New York’s highest court held in Lighthouse Pointe Property Associates LLC v. New York State Dep’t of Envtl. Conservation, — N.E.2d –, 2010 WL 546058 (N.Y.), 2010 N.Y. Slip Op. 01377 (Feb. 18, 2010) (“Lighthouse”), that the New York State Department of Environmental Conservation (“DEC”) improperly excluded property in Monroe County from the Brownfield Cleanup Program (“BCP”). DEC contended that the property was not eligible for the program because the level of contamination was not sufficiently high to warrant admission into the BCP.
Rejecting DEC’s argument, the Court emphasized the expansive nature of the BCP statute, which defines eligible property, or a brownfield, as “any real property the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant.” N.Y. Envtl. Conserv. L. § 27-1405. The Court noted that this “low eligibility standard” is “consistent with the statute’s legislative history,” which evinces the statute’s aim of remedying development disincentives arising from strict, joint, and several liability for environmental cleanups. The Court declined to remit the matter to DEC for further consideration, and ordered the property admitted into the BCPbased on the extensive record supporting eligibility.
The Court of Appeal’s decision in Lighthouse is consistent with three recent brownfield decisions in which the Appellate Division struck down DEC’s efforts to exclude property from the BCP based on factors not provided in the BCP statute. In HLP Properties, LLC v. New York State Dep’t of Envtl. Conservation, — N.Y.S.2d –, 2010 WL 455321 (1st Dep’t Feb. 11, 2010) (“HLP”) and East River Realty Co., LLC v. New York State Dep’t of Envtl. Conservation, 68 A.D.3d 564, 891 N.Y.S.2d 359 (1st Dep’t Dec. 17, 2009) (“ERRC”), the First Department rejected DEC’s argument that the property in question did not meet the eligibility criteria for a “brownfield” because the site would have been remediated even without participation in the BCP. In Destiny USA Dev., LLC v. New York State Department of Envtl. Conservation, 63 A.D.3d 1568 (4th Dep’t June 5, 2009) (“Destiny”), the Fourth Department rejected DEC’s efforts to exclude property from the program based on non-statutory economic factors set forth in a DEC guidance document.
The Lighthouse decision reflects that New York courts will properly ensure that DEC follows statutory mandates and will invalidate improper exclusion of properties from the BCP.
SPR represented HLP and ERRC in connection with their challenges to DEC’s exclusion of their property from the BCP. For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.
June 24, 2009
On Monday, June 22, 2009, the Supreme Court, in Coeur Alaska Inc. v. Southeast Alaska Co., 2009 WL 1738643 (2009), held that the Army Corps of Engineers (the “Army Corps”) has authority to issue a permit for the discharge of mined rock slurry from a gold mine into an Alaskan lake as fill material under Section 404 of the Clean Water Act (“CWA”), and that the Environmental Protection Agency (“EPA”) is not required to regulate the mined rock as a pollutant under Section 402 of the CWA.
In 2005, the Army Corps. issued a permit to Coeur Alaska Inc. (“Coeur”) with respect to reopening the Kensington Gold Mine, north of Juneau, Alaska. Couer’s plans included use of a “froth flotation” technique that churns mined rock in tanks of water, causing gold-bearing materials to float to the surface. Once the gold is skimmed off the top, a mixture of crushed rock and water is left behind. This mixture, known as slurry, is typically disposed of in tailing ponds. Coeur proposed an alternative disposal method that would involve pumping 4.5 million tons of slurry into Lower Salt Lake and then discharging purified lake water into a downstream creek. The Army Corps approved of Coeur’s plan and issued a fill permit under Section 404 of the Clean Water Act.
Environmental groups challenged the permit by arguing that EPA, and not the Army Corps, had authority to issue the permit. The environmental groups claimed that the Army Corps permit violated the CWA’s new source performance standards (“NSPS”) which prohibit the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR §440.104(b)(1). The U.S. District Court of Alaska found for the Army Corp by holding that the permit was properly issued under the CWA. The Ninth Circuit Court of Appeals reversed and blocked the permit, holding that the discharge was “prohibited by clearly applicable and specific performance standards.” 486 F.3d 638 (9th Cir. 2007).
In a 6-3 decision, the Supreme Court found that the agencies’ permitting authority under the CWA was mutually exclusive, with the Army Corps’ authority extending over permits for the discharge of “dredged or fill material” and the EPA’s authority applying to permits for the discharge of “any pollutant,” except where the permit is for the disposal of fill material. Consequently, the Court established that the Army Corps had sole authority to issue permits to discharge slurry because slurry is a type of “fill material.” Both agencies define “fill material” as material changing the bottom elevation of water and “discharge of fill material” to include “placement of … slurry, or tailings or similar related materials.” 40 CFR § 232.2.
The dissent touted the CWA’s “text, structure, and purpose” as a mandate to adhere to EPA’s pollution-control requirements. It argued that the pollution-control mandate was intended to be read throughout the CWA and adherence to the mandate was one of the main reasons the EPA and not the Army Corps, should have jurisdiction over the permit process to dispose of slurry.
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