November 26, 2013
On November 13, 2013, a New York State appellate court ordered the reinstatement of the New York State Department of Environmental Conservation’s (“DEC’s”) general permit covering municipal separate storm sewer systems (“MS4s”), almost two years after a lower court rejected the general permit as an “impermissible self-regulatory system.” The latest decision will allow “small MS4s” (covering populations of less than 100,000) to seek or resume coverage for their stormwater outfalls under the statewide general permit, as opposed to submitting individual permit applications for each outfall. The decision also means that, in all likelihood, the Industrial Stormwater (Multi-Sector) General Permit and Construction Stormwater General Permit are safe from any similar challenge.
Prior to discharging stormwater to surface waters within New York State, an MS4 must be covered by a State Pollutant Discharge Elimination System (“SDPES”) permit, which may be issued either on an individual basis or, for eligible municipalities, pursuant to DEC’s MS4 General Permit. To obtain coverage under the General Permit, a MS4 must submit to DEC a Notice of Intent (“NOI”) to be subject to the General Permit and must subsequently comply with the permit’s terms. The NOI also proposes an MS4-specific Stormwater Management Plan (“SWMP”) to effectuate pollution reductions, which must be developed and implemented within three years of gaining permit coverage.
In a January 2012 decision, Justice Joan Lefkowitz of the New York State Supreme Court, Westchester County annulled the MS4 General Permit as inconsistent with the Environmental Conservation Law (“ECL”). As detailed in an earlier blog post, the Court held that the DEC’s review of an NOI for “completeness” does not ensure that the MS4 will reduce pollutant discharges to the “maximum extent practicable,” as required by law. The Court also held that NOI submissions are the “functional equivalent” of individual permit applications, and must be therefore be subject to the same procedures, including an opportunity for a public hearing. The Court’s interpretation of the ECL had potential impacts upon construction site operators and other entities subject to general permits, as public hearings are not currently required under any of DEC’s general permits.
With this month’s decision, the Second Department of the Appellate Division reversed the Supreme Court and reinstated the MS4 General Permit. The appellate court held “the General Permit does include a variety of enforcement measures that are sufficient to comply with the maximum extent practicable standard,” such as DEC’s review of the best management practices set forth in an NOI and DEC’s authority to revoke or amend the General Permit. The Court also found “it was not arbitrary and capricious for the DEC to limit the opportunity for public hearings to those situations in which a new general permit is proposed or an existing general permit is renewed,” as opposed to requiring a hearing on each individual NOI.
For more information on the Court’s decision and the permitting of stormwater discharges in New York State, contact Michael Bogin.
August 2, 2013
On July 26, 2013, the U.S. Court of Appeals for the Second Circuit upheld a 2009 lower court jury’s $104.69 million damage award against Exxon Mobil Corp. for contaminating New York City’s groundwater with the gasoline additive methyl tertiary butyl ether (“MTBE”).
New York City initially sued Exxon Mobil and other petroleum companies in 2003, alleging that they knew that MTBE would pollute groundwater and ignored warnings from their own scientists and engineers not to use the additive in areas where groundwater has been proposed as a drinking water supply. Exxon Mobil responded that the City’s common law claims were preempted by the federal Clean Air Act, which from the mid-1990s through 2004 required use of gasoline oxygenates, such as MTBE, in New York City.
The lower court proceedings involve an 11-day trial; the jury deliberated for an additional 11 days before reaching its verdict in 2009. The court held that Exxon Mobil was liable for the contamination and the jury found a damage award of $104.69 million attributable to Exxon Mobil of the total $250.5 million New York City claimed it would cost to remediate the contamination (42 percent of the fault was attributed to other petroleum companies).
U.S. District Judge Shira Scheindlin, who authored the lower court opinion, ruled that the company would not be liable for punitive damages because they hadn’t recklessly disregarded risks posed by MTBE. The appeals court agreed with Judge Scheindlin and denied cross-appeals by the City on the question of punitive damages.
The appeals court also rejected Exxon Mobil’s request for a retrial on the ground of juror misconduct. The company alleged that Judge Scheindlin should have declared a mistrial after one juror complained that she was threatened by another. Exxon Mobil claimed that the threatened juror, who was ultimately released, was harassed because her opinion differed from her fellow jurors’.
Several other similar complaints have been brought in courts around the country against Exxon Mobil and other oil companies. In April, a New Hampshire jury ruled that Exxon Mobil would have to pay $236 million for MTBE contamination of drinking water in the state, a verdict that the company is currently appealing.
MTBE has been used in U.S. gasoline at low levels since 1972 to replace lead as an octane enhancer. Its use in gasoline increased between 1992 and 2005 in order to fulfill oxygenate requirements set by Congress in the 1990 Clean Air Act Amendments. However, increasing numbers of studies have detected MTBE in groundwater throughout the country, in some instances contaminating sources of drinking water. Several states have enacted legislation banning MTBE use in gasoline – New York has banned MTBE since January 1, 2004.
Exxon Mobil has indicated through their spokesperson that the company intends to file an appeal to the United States Supreme Court.
For further information, please contact Devin McDougall.
April 19, 2013
On April 5, EPA proposed a rule changing the effluent limitation guidelines for stormwater discharges from construction and development point sources.
Why is EPA Changing the Standard?
These changes reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group resolving the 7th Circuit lawsuit, Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012). The groups challenged the EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and attempts at compliance with effluent limitations guidelines could cost stakeholders up to $10 billion annually.
Who is Affected by these Changes?
The 2009 C&D Rule applies only to stormwater discharged during construction, which generally includes clearing, grading and excavation. Owners and operators of construction sites with one acre or more of land disturbance are subject to regulation and would be affected by the changes incorporated in the proposed rule.
What are the Changes?
The EPA acknowledged that the numeric turbidity requirements in the 2009 C&D Rule were flawed, and stayed implementation until additional information could be gathered. Pursuant to the Wisconsin Builders Association settlement, the proposed rule entirely eliminates numeric turbidity limits. The proposed rule additionally gives permittees more flexibility in adopting stormwater controls by specifically defining “infeasible” to allow consideration of industry practice as well as cost. EPA has also incorporated common-sense explanations of how the rule should be applied. For example, the requirement to minimize soil compaction is now explicitly inapplicable in areas where the site’s function requires soil compaction, such as foundation pads for buildings or roads; similarly, the requirement to stabilize certain areas does not apply to areas whose function necessitates that they not be stabilized. These changes, and others, reflect the continuing evolution of the standards for stormwater management under the Construction General Permit.
How Does This Affect Construction in New York?
In New York, the Department of Environmental Conservation (DEC) has authority to administer the NPDES program under its SPDES permit system. DEC has already adopted many of the 2009 C&D Rule requirements in its Construction General Permit (GP-0-10-001) and the New York State Stormwater Management Design Manual (2010). Discussion of the effect of the current proposed rule on the DEC Construction General Permit will be forthcoming in another blog post shortly.
EPA is accepting comments on the proposed rule through May 31, 2013.
For more information on stormwater regulation contact Michael Bogin or Maggie Macdonald.
April 1, 2013
On March 20, 2013, the Supreme Court upheld the Environmental Protection Agency’s (“EPA”) exclusion of ditches, channels, culverts, and other stormwater conveyances associated with logging roads from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”) program established by the Clean Water Act (“CWA”). The eight-justice majority deferred to EPA’s interpretation of two CWA regulations, although a dissent by Justice Antonin Scalia argued such deference was misplaced and that the conveyances should have been regulated as “point sources” under the Clean Water Act.
The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits. The defendants – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations. One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others. The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”
NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose. This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself. This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.
The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits. In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.
A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law. Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.
The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.
For more information on stormwater permitting issues, please contact Michael Bogin.
March 28, 2013
Two significant milestones were reached yesterday on the New NY Bridge/Tappan Zee Hudson River Crossing project, which will replace the aging Tappan Zee Bridge connecting Westchester and Rockland Counties. First, the New York State Department of Environmental Conservation (“DEC”) issued combined permits under state Environmental Conservation Law Article 25 (concerning activities on tidal wetlands), Article 11 (concerning incidental taking of endangered or threatened species) and Article 15 (water quality certification under Section 401 of the Clean Water Act). Second, the New York State Thruway Authority and DEC announced that they had signed an agreement with the environmental groups Riverkeeper and Scenic Hudson that would avoid those organizations’ potential legal challenges to the federal and state environmental review and permits for the project. Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the project at all levels of government.
The issuance of the Section 401 water quality certification by DEC allows the remaining federal permits for the project to move forward. Project permits from the Army Corps of Engineers and the Coast Guard are anticipated in the upcoming weeks. The first construction barges for the project arrived at the project site this week to begin geotechnical investigations for bridge piles; construction of temporary work platforms for the bridge is expected to begin in early May. These initial steps represent the beginning of a five-year construction process for the new bridge.
The New NY Bridge project is being built using an innovative design-build process, and is believed to be the largest such transportation project in the United States. It is also the first such project in New York State under the recently enacted legislation authorizing design-build projects. The project has involved a labyrinth of environmental reviews, approvals and permitting processes, including the intersection of the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), parkland review under Section 4(f) of the Department of Transportation Act, historic review under Section 106 of the National Historic Preservation Act, consultation under the Endangered Species Act, Essential Fish Habitat review, various Executive Orders respecting wetlands and environmental justice, and Clean Air Act conformity determinations by the Army Corps of Engineers and Coast Guard, among others.
Sive, Paget & Riesel’s involvement with the New NY Bridge project reflects the firm’s recognized expertise and experience with major transportation and infrastructure projects and the navigation of the dizzying complex of required reviews. The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects. For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.
June 10, 2012
On May 31, EPA posted a Notice of Data Availability (“NODA”) in advance of forthcoming regulations which may provide a more flexible interpretation of Clean Water Act Section 316(b)’s Best Technology Available (“BTA”) requirement for facilities that operate cooling water intake structures (“CWIS”).
Section 316(b) requires facilities to adopt BTA minimizing adverse environmental impacts from fish being drawn into CWIS (known as entrainment) or trapped against screens at the front of an intake structure (known as impingement), where fish may be harmed or killed.
In a 2011 proposed rule governing existing power plants and manufacturing facilities, EPA recommended case-by-case, site-specific determinations of BTA to prevent entrainment, but appeared to favor the installation of travelling screens as the uniform national BTA standard for preventing impingement. Travelling screens can be costly, if not impossible, to install, depending on the size of the facility and site conditions.
In a move that would provide more options for CWIS operators, the NODA sets forth a number of alternatives to this one-size-fits-all approach to BTA for impingement. Specifically:
- In defining BTA, the new regulations may permit a facility to adopt “any technology it chooses so long as it will achieve the required impingement limitation.” EPA is also considering giving credit for impinged fish survivability and for fish that a facility excludes from becoming impinged in the first place.
- EPA may also establish a “de minimis” impingement category that would effectively eliminate BTA requirements for facilities with very low impingement rates. While most facilities would probably not fall into this category, this exemption would be critical to those that could make this showing.
- EPA is considering whether to allow establishment of impingement controls on a site-specific basis, either in all cases or limited to those circumstances in which the facility demonstrated that the national controls were not feasible. Under such an approach, rather than meeting a specific, pre-determined standard a facility could seek a site-specific BTA for both entrainment and impingement mortality.
- The permit director may be authorized to determine species of concern that would be subject to the impingement mortality standard in the rule. Other species, such as clupeidae, would potentially be excluded from the standard, a critical distinction for certain facilities and industries.
- Perhaps most significantly, EPA is suggesting a new “streamlined” regulatory process for facilities that simply opt to employ modified travelling screens with fish returns, which EPA considers to be pre-approved BTA. Here, as long as the owner or operator of a facility complies with the specified operational conditions, the impingement mortality limitations would be deemed to have been met. Subsequently, the owner or operator would not have to conduct any biological monitoring to show compliance with the impingement mortality limitations. In subsequent permit terms, and in the absence of major changes to the operation of the intake structure or the biology of the source water, EPA expects the permit director would waive any further requirement for a study or compliance monitoring for the facility.
EPA will solicit comment on the NODA, and public input will be considered before the 316(b) regulations are finalized. For more information about EPA’s cooling water intake structure regulations, contact Michael Bogin.
Scott Elliott is a Summer Associate at Sive, Paget & Riesel.
March 22, 2012
In a unanimous decision that could herald major changes in federal and state environmental enforcement, yesterday the Supreme Court upheld a property owner’s right to challenge the basis for a Clean Water Act compliance order alleging unlawful filling of wetlands, before the Environmental Protection Agency (“EPA”) had filed suit to enforce it. Previously, EPA and every Circuit Court to consider the issue had denied pre-enforcement review of such orders, requiring landowners to apply for a fill permit in order to challenge EPA’s assertion of jurisdiction or risk substantial penalties for violating EPA’s directives.
The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review. Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.” Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.
Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands. EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.
The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result. Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.
The Supreme Court reversed. As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction. The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”
Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review. It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.
In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions. For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred. Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.
For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.
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