Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this month, EPA has to be reconsidering. I assume that EPA won’t give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point.
Category Archives: Enforcement
Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia. The motion was unopposed.
Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him, including:
The strength of the government’s case How the government calculated penalty… More
As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them. As the Court stated in EME Homer Generating:
with time travel yet to be discovered, it is impossible to “restrain” a violation that occurred twenty years ago. Likewise, courts cannot “require compliance” from defendants who are not currently violating the Clean Air Act… More
On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine caused exceedances of Kentucky water quality criteria for selenium. Thunder Ridge is covered by a general permit, not an individual site permit, and the Sierra Club argued that the shield should not apply. However, this seems like a classic case of a distinction without a difference, and the Court agreed.
The statute provides that “compliance with a… More
In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements. Some of the tools are more “next generation” than others, but they all bear watching by the regulated community. The specific tools highlighted in the Giles memorandum include:
Advanced monitoring, including real-time monitoring of ambient pollution levels at the facility fence-line or in the immediate neighborhood Third party compliance verification Electronic reporting Increased public availability of compliance data
To me, the first and last bullets are key. Third party compliance verification is… More
Last week, EPA released its report on Enforcement Annual Results in EPA Regions for Fiscal Year 2014. As always, the report is worth reading, if only for the interactive map which shows where EPA has brought various kinds of cases.
Notwithstanding the traditional self-congratulatory tone of the report, the press coverage has almost uniformly focused on the year-to-year decrease in cases brought and dollars recovered. Greenwire’s headline was “Enforcement actions decline again; agency blames shutdown, budget woes.”
I’m just a poor country lawyer and I don’t have the time to do the necessary sophisticated statistical analysis, but isn’t… More
Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances
Earlier this week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:
discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].
Similarly, the West Virginia surface mine… More
EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense
Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day, the 4th Circuit Court of Appeals affirmed a decision narrowly construing the CWA’s permit shield defense.
Southern Appalachian Mountain Stewards sued A&G Coal over discharges of selenium from A&G’s Kelly Branch Surface Mine in Virginia. The case was not really difficult and was only ever going to have one outcome.
According to the record, at the time of A&G’s NPDES permit… More
The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation
After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would sweep. It is clear that EPA’s order authority under similar statutory provisions – such as those in the Clean Air Act – is also subject to Sackett. However, what about seemingly less final actions, such as issuance of notices of violation?
Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that the United States could pursue injunctive relief claims against United States Steel with respect to allegations by EPA that US Steel had made major modifications to its plant in Gary, Indiana, in 1990 without complying with NSR requirements.
Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit
Stormwater pollution has become an increasingly important problem. Part of the difficulty in solving it is that it’s not obvious who should be responsible. Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces? Often, the answer given by EPA and state regulators is that municipal separate stormwater sewer systems, or MS4s are responsible, but they have the authority – and sometimes the obligation – to impose appropriate requirements on property owners.
That was the case in Citizens for Pennsylvania’s Future v. Pittsburgh Water… More
Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds
The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties. The decision may not break any new ground, but it does help solidify some issues:
The statute of limitations begins to run when construction commences (“the last possible moment at which a preconstruction violation occurs is… More
As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat came late last week, in Pennsylvania v. Allegheny Energy, when Chief Judge Conti granted judgment for the defendants on claims alleging both NSR and NSPS violations.
At some level, the decision is not a big surprise, since the court had previously ruled in Allegheny’s favor on the critical legal issue, concluding that whether projects constitute “routine maintenance, repair, and replacement”, or RMRR, must… More
Although courts are sometimes reluctant to enforce them, there really are hard stops in CERCLA, particularly the three year statute of limitations for recovery of costs incurred in a removal action. In Commonwealth of Pennsylvania Department of Environmental Protection v. Beazer East, Inc., the Third Circuit recently affirmed the dismissal of a CERCLA cost recovery action by the State of Pennsylvania on the basis of the three year limitations period for removal actions. There, the state had undertaken over $3 million of response actions at a Superfund site in 2004 but delayed until 2009 in commencing a cost recovery… More
Last month, I noted that shrinking EPA budgets would lead to greater focus on citizen enforcement. This week, an article in Law360 concerning EPA’s draft 2014-2018 strategic plan has driven that message home. While talking about increased use of technology to monitor compliance more efficiently – all well and good and certainly for real – the strategic plan acknowledges a likely significant decrease in the number of enforcement actions to be brought by EPA. We’re talking an almost 50% decrease.
Now, I’ve long been an advocate of focusing on outcomes. More enforcement doesn’t necessarily mean a cleaner… More
The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit
Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements. Well, in a decision issued on October 23, Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, asked himself the same question. His answer was that EPA has no such authority.
In a theme recurring with greater and greater frequency… More
As the EPA budget continues to get squeezed by the ongoing sequester and a GOP-controlled House that is, shall we say, less than sympathetic to EPA’s mission, it is not surprising that EPA would try to shift more of the enforcement burden to citizen groups. According to a report in Greenwire yesterday, that is precisely what EPA has in mind.
Greenwire quotes Cynthia Giles, EPA’s enforcement czar as saying that “we have far too much noncompliance, widespread noncompliance in some of the largest sectors.” Noting budget problems, Greenwire states that “EPA is looking for new ways to catch violations… More
Last spring, Robby Sanoff complained in this space about the problem resulting from appellate courts’ refusal to give appropriate discretion to district judges in performing their gatekeeping function under Daubert. As Robby put it:
The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder.
Robby will not be pleased by last’s week’s decision by the 11th Circuit Court of Appeals in United States v. Alabama Power, reversing a district court order excluding EPA’s expert testimony in support of its NSR enforcement action against Alabama Power. … More
The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing
Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing. On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed. Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.
In short, the statute simply provides that:
[n]o major emitting facility . . . may be constructed [or modified] . . . unless” it meets various PSD requirements.…
Because this language does not say “constructed,… More
More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies
Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge. Now we see the flip side. In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges, without any NPDES permit at all, because the Wisconsin Department of Natural Resources had informed Flambeau Mining that, following mine closure, its stormwater discharges would be regulated through… More
What Is the Burden In Proving a Violation of a Stormwater Permit? If It Walks Like a Stormwater Discharge …
Those of us who do NPDES work know that enforcement, including citizen enforcement, against industrial point sources can often be all to straightforward. The plaintiff marches into court with a pile of the defendant’s discharge monitoring reports and the liability phase may be over quickly. Stormwater cases are different, as last week’s 9th Circuit decision in NRDC v. County of Los Angeles demonstrates.
The Clean Water Act permit shield provision provides that compliance with an NPDES permit constitutes compliance with the CWA. What happens when the permit does not mention a particular pollutant? In Southern Appalachian Mountain Stewards v. A&G Coal, decided late last week, the Court made clear that the permittee must fully disclose information about its discharge of the pollutant to the permitting agency in order for the shield to be available.
A&G Coal operates a surface coal mine. Selenium was not mentioned in A&G Coal’s permit and A&G Coal conceded that it was discharging selenium. A&G Coal had not… More
The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations
Earlier this week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison. Commonwealth Edison was the prior owner of the plants at issue and modified them at various times from 1994-1999 without obtaining PSD/NSR approvals before doing so. Midwest Generation purchased the plants and continued to operate them. In 2009, the United States sued both Commonwealth Edison and Midwest Generation. In 2010, the District Court ruled that the government was not entitled to relief. The government appealed, but in the meantime, Midwest Generation filed for… More
What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update
In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy. No company ever wants to receive such an injunction and NCR sought to soften the impact of that injunction by proposing that it would share the costs of performing the remedy on an interim per capita basis with the three other PRPs. When those three other PRPs declined, NCR requested that the court order the PRPs to each pay a 25% per capita share along with NCR.
On Thursday, in United States v. DTE Energy Company, the 6th Circuit Court of Appeals revived EPA’s enforcement action against DTE energy for alleged NSR violations at DTE’s Monroe Power Plant. As the dissent notes, it may be a hollow victory.
The facts trace a familiar NSR enforcement case trajectory. In 2010, DTE commenced a $65 million maintenance project at Monroe, involving tubing, the economizer, and reheater piping, among other elements of plant equipment. Under EPA’s NSR regulations, DTE had determined, once demand growth was excluded,… More
Last week, EPA announced that it had reached yet one more – its 24th – settlement under as a result of its NSR enforcement initiative. This time, it was Louisiana Generating’s Big Cajun II plant, in New Roads, Louisiana. By now, the contours are familiar, including a penalty of $14 million and injunctive relief estimated to cost approximately $250 million. Changes will include:
Installation of SNCR (not SCR) on all units to control NOx. Installation of dry sorbent injection as a… More
EPA recently released two guidance documents relevant to Superfund practitioners. One establishes revised procedures regarding how EPA will manage negotiations with PRPs. The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.
The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face, but when you step back and take a big picture look, you have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a… More
Late last month, in Wildearth Guardians v. Lamar Utilities Board, Judge David Ebel ruled that Lamar violated the Clean Air Act by not obtaining a MACT determination, given that its potential emissions of hydrochloric acid were 10.3 tons per year, above the 10 tpy limit for any single hazardous air pollutant. The decision provides an abject lesson on the costs imposed by regulatory uncertainty.
The facts, in bullet form, are as follows:
In 2000, EPA determined that coal- and oil-fired electric generating units would be subject to MACT. In 2004, Lamar decided to upgrade an existing small natural gas-fired… More
More Evidence That the Government No Longer Automatically Wins Superfund Cases: New Jersey Requires Proof of a Nexus Between a Discharge and Response Costs
As I have previously noted, government attorneys’ traditional approach to litigating Superfund cases has been to announce that they represent the government and that they therefore win. There was hope, following the Supreme Court’s decision in Burlington Northern, that those days were nearing an end.
It is clear to me, following too many cases after Burlington Northern, that the government remains of the view that it is entitled to win these cases just by showing up. This hubris was evident recently in a decision rendered under the New Jersey Spill Act. In NJDEP v. Dimant, the… More
Last week, in United States v. Louisiana Generating, EPA won a ruling regarding what type of projects fall within the routine maintenance, repair or replacement exception from the rule that facility modifications are subject to PSD/NSR requirements. The decision is thorough in that it carefully reviews the so-called “WEPCO Factors” – the nature, extent, purpose, frequency, and cost of the work, and applied them to the work at issue in this case, i.e., reheater replacements at the Big Cajun II power plant.
Notwithstanding the thoroughness of the court’s analysis, I… More
An article in the New York Times earlier this week reported on EPA’s attempts under the Superfund program to address contamination in water bodies, such as rivers, lakes and harbors. Although the article acknowledges that these water body sites are technically challenging, it does not remotely capture the tortured regulatory history of these sites or the dubious remedial approach that EPA is now pursuing. It is not an exaggeration to say that some of the most notorious Superfund failures involve water body sites.
Typical of the course of water body sites under the Superfund program is the
PRPs hoping that the Supreme Court in Burlington Northern had established that volume could always be used as a basis for apportioning CERCLA liability will be disappointed by a recent Seventh Circuit opinion. Affirming the trial court’s apportionment decision in the Lower Fox River case on which I blogged earlier, the Seventh Circuit distinguished Burlington Northern and followed the Restatement test that apportionment is not available whenever each tortfeasor’s contribution is independently capable of causing the harm. According to the court, the discharge of PCBs into the Lower Fox River by multiple PRPs was akin… More
Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals affirmed EPA’s decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA’s determination regarding excess emissions during startup, shutdown, and malfunction/maintenance (SSM). In short, the Court agreed with EPA’s decision to allow sources to assert an affirmative defense to an enforcement case related to excess emissions during unplanned SSM events, but… More
What’s the Future for Multi-Day Fines in Environmental Criminal Cases? The Supreme Court Rules That Juries Must Decide the Facts Supporting the Fines
The Supreme Court ruled today, in Southern Union v. United States, that juries must decide facts supporting the imposition of criminal fines. To this non-criminal lawyer (in more ways than one, I hope), the decision did not seem particularly difficult in light of Apprendi v. New Jersey, but that doesn’t mean that the decision won’t be significant in some environmental cases.
Southern Union was a RCRA case involving allegations that Southern Union had stored a hazardous waste without a permit. Specifically, the indictment alleged that Southern Union had done so "[f]rom on or about September 19, 2002 until… More
E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”
Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee, in the great Commonwealth of Massachusetts. According to Mayor Bissonnette, the cost of stormwater compliance in Chicopee will be $200 million – this for… More
After the oral argument Sackett v. EPA presaged where the decision was coming down, I raised the question whether EPA would try to persuade district courts that nothing really had changed. On occasion, I call them correctly. According to E&E News, Mark Pollins, director of EPA’s Water Enforcement Division, in commenting on Sackett, said
What’s available after Sackett? Pretty much everything that was available before Sackett. Internally, it’s same old, same old.
Tone deaf doesn’t quite cover this one. If Mr. Pollins’s remarks are representative, and my experience tells me that they are, EPA just doesn’t get it. For one thing,… More
It’s always satisfying to find an open-minded judge who is willing to change his decision when he is shown to be wrong, but Judge Greisbach of the Eastern District of Wisconsin may be crossing the line from open-mindedness into a chronic inability to make up his mind. In the past 9 months, Judge Greisbach has issued three separate decisions in US v. NCR on the subject of whether a party, Appleton Papers, Inc., which purchased assets from an alleged polluting party, NCR Corp., can be held to have successor liability under CERCLA with respect to the PCB contamination of the… More
In its unanimous decision yesterday in Sackett v. EPA, the Supreme Court’s communicates more than a little exasperation with its co-equal branches of government. Justice Alito’s concurrence is an outright broadside attacking Congress for failing over decades to clarify the scope of the Clean Water Act which enabled the Executive Branch in the form of an arrogant EPA to employ what Justice Scalia in the majority opinion describes as the “strong-arming of regulated parties”.
The language used in Sackett is both sarcastic and highly personalized. In a sentence dripping with sarcasm, Justice Scalia notes that EPA’s order concluding… More
For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.
The first is what will happen to CWA enforcement. On that score, I actually largely share Justice Alito’s view:
The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the… More
Over the first two decades of CERCLA, the rule gradually emerged that parties which settled their liability were restricted to contribution claims under Section 113(f)(1) and would be entitled to contribution protection under Section 113(f)(c)(2). Moreover, in order to ensure the effectiveness of that settlement scheme, courts routinely ruled that claims against settling parties were all barred by contribution protection regardless whether those claims had been asserted in the form of direct CERCLA cost recovery claims under Section 107 or as common law tort claims for negligence, nuisance, or trespass. E.g., Cannons Engineering.
In 2004, the Supreme Court… More
For several decades now, the United States has taken the position that communications and documents exchanged in Superfund matters between government lawyers representing the US EPA and government lawyers representing federal PRPs are privileged. Specifically, the government has argued that both of these sets of government lawyers represent the same party — the United States, which is a unitary government — and thus their communications are protected as attorney-client communications. That unitary government position was squarely rejected earlier this week in Menasha Corporation v. United States Department of Justice – yet another litigation arising from the Lower Fox River… More
Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it here.
Is the Bell About to Toll on EPA’s Enforcement Order Authority? The Supreme Court Hears Oral Argument in Sackett
I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate, and… More
The decision yesterday in United States v. Minnkota Power Cooperative serves as a useful reminder regarding how important the burden of proof is in review of agency decisions. The case started in 2006, as part of DOJ’s NSR enforcement initiative, when the United States and North Dakota brought suit against Minnkota’s Milton R. Young Station. The parties settled and a consent decree was entered. Apparently, the parties knew at the time of the settlement that there would be a dispute regarding what would constitute BACT for NOx control and they thus agreed to defer… More
The PCB contamination in the Lower Fox River in Wisconsin continues to spawn novel Superfund decisions. The latest is US v. NCR, in which Judge Greisbach of the Eastern District of Wisconsin reversed his initial ruling, made less than six months ago, that the United States could not establish successor liability under CERCLA against Appleton Papers, which had bought assets from the alleged polluting party – NCR Corp – and assumed NCR’s liabilities. As Judge Greisbach explained in his earlier ruling, there can be no successor liability where the seller of assets remains a viable CERCLA defendant, since… More
EPA may have had problems in court in recent years defending its regulations, but it has generally fared much better in its enforcement cases. Earlier this week, however, EPA suffered what will be, if it is affirmed, a devastating defeat in its PSD/NSR enforcement initiative. In United States v. EME Homer City Generation, Judge Terrence McVerry concluded that the government could get no relief against either the former owners of the facility or the current owners or operator. No penalties. No injunctive relief. No relief under state law. Nothing. Nada.
The facts here were typical of NSR enforcement cases. The facility, in Homer City, Pennsylvania, had implemented… More
As some of our clients know all too well, I am spending much time these days defending citizen suits. As federal and state agency budgets get slashed, we’re only going to see more such suits, unless a Tea Party-controlled Congress amends the relevant statutes to cut back on citizen suit provisions.
In a move that will facilitate citizen enforcement, EPA announced last week that it has yet again upgraded its Enforcement and Compliance History Online, or ECHO, data base. As Cynthia Giles, EPA’s Assistant Administrator for Enforcement said:
EPA is committed to providing the public with easy to use tools… More
The public perception is that big, bad corporations can just spend as much money as necessary to win in court. Those of us in the trenches know that the reality differs. Indeed, at least with respect to actions brought by government environmental agencies, the most common defense experience is for the DOJ attorney to introduce him or herself by saying. “Good morning, your Honor, my name is ________. I represent the government, and I win.”
Perhaps the Justices Just Don’t Like GE: The Supreme Court Grants Certiorari to Review EPA’s Clean Water Act Order Authority
As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining… More
As much as I’ve always found EPA’s use of unilateral administrative orders under Section 106 of CERCLA to be offensive, I still expected EPA’s authority to withstand challenge. As I noted previously, not every law that is unfair is unconstitutional. At least for now, the issue has probably been laid to rest. Yesterday, the Supreme Court denied GE’s petition for certiorari seeking to appeal the D.C. Circuit’s rejection of its claim that EPA’s exercise of its unilateral order authority is unconstitutional.
CERCLA has been constitutional for almost as long as Francisco Franco has been dead – and they’re… More
Thursday afternoon, EPA and the Tennessee Valley Authority announced one of the largest pollution reduction consent decrees in US history – resulting in between $3 to $5 billion of investment in air pollution controls, and retirement of almost one-third of TVA’s coal-fired generating units within the next few years. Over the next decade, it will reduce TVA’s total emissions of nitrogen oxides by 69% and sulfur dioxide by 67%. Although the agreement provides a timely victory for EPA amid the current backlash against it in Congress, the settlement actually relates to a New Source Review (NSR) suit commenced by… More
While EPA remains under attack by the GOP-majority House, that doesn’t mean that coal is off the hook. To the contrary, coal remains under attack itself. A number of recent stories demonstrate the multi-pronged effort by those who want to reduce or eliminate use of coal. For example, the Environmental Integrity Project and two Texas-based NGOs just filed suit against the Lower Colorado River Authority’s Fayette Power Project, alleging violations of NSR/PSD requirements and exceedances of particulate limits in the plant’s permit. There is no doubt that there is a concerted effort by NGOs to make life difficult for coal. Thus, even if… More
Last month, I noted that, in the absence of comprehensive climate legislation, U.S. carbon policy would be a mish-mash of several elements – including more NSR enforcement. In fact, Phillip Brooks, director of EPA’s Air Enforcement Division, had just told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and he predicted more closures of old coal plants as a result of EPA’s NSR enforcement. Earlier this month, proving that Brooks meant what he said, the United States sued Ameren Corporation, alleging NSR violations at Ameren’s Rush Island facility in Festus, Missouri.
Earlier this week, the United States brought another NSR/PSD enforcement action, this time concerning the Homer City Plant, in Pennsylvania. The suit itself isn’t big news, though it’s helpful to have periodical reminders that the NSR enforcement initiative remains active at EPA and DOJ; it is a significant part of the government’s arsenal against traditional pollutants.
It’s also important to remember that, in the absence of comprehensive climate legislation, the NSR enforcement initiative has become part of the government’s climate strategy. The plant spokesman stated that the plant is… More
When EPA creates a web page solely addressing one stormwater settlement, you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA’s announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – count ‘em, 21 – states should make everyone in the construction industry sit up and take notice.
The settlement requires Beazer Homes to pay a penalty of $925,000 (mostly to EPA, but some to each of the states). EPA estimated a price tag for… More
As the holiday approaches, I am particularly thankful that I am not counsel to the Washington State DOT in United States v. Washington State DOT, a case that continues to make me want to take EPA, DOJ, and United States District Judge Robert Bryan by the neck and ask them what the heck are they thinking.
In July, I posted about Judge Bryan’s decision holding that the Washington DOT “arranged” for the disposal of hazardous substances by designing and operating a highway drainage system that deposited highway runoff containing hazardous substances into… More
One of the first lessons I learned as a summer associate, more years ago than I care to remember, is that the probability of a successful estoppel claim against the government is approximately the same as the probability that there is a Santa Claus. After the recent decision from the District of New Jersey in FMC Corporation v. American Cyanamid, the probability of a successful estoppel claim may still be low, but it isn’t zero.
FMC involves claims concerning the Higgins Farm Superfund Site, in Franklin, New Jersey. According to the decision, FMC contacted the State of New Jersey in 2001… More
In a crisply written opinion by Judge Posner, the 7th Circuit Court of Appeals just reversed a district court judgment against Cinergy in the NSR case involving Cinergy’s power plant in Wabash, Indiana, and directed that judgment enter for Cinergy. It is not obvious that the case will have wide applicability, but it is certainly worth noting.
The first key issue in Cinergy was whether proposed new projects would be subject to NSR review if they were expected to result in an increase in annual emissions or only if they would result… More
If environmental lawyers have been wondering when they’re going to get their share of economic stimulus, it’s time to stop wondering. Last week, Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, announced that her office would be focusing on higher impact cases. Giles also noted that, by the end of this month, EPA would have more than 200 criminal investigators.
If it weren’t for one statement by Giles, I don’t think that this would be news. Enforcement numbers always fluctuate. Environmental and watchdog groups always criticize EPA and state agencies when the numbers go… More
When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can – but only in limited circumstances.
EPA shows no signs of slowing down in its efforts to use the Clean Air Act’s PSD/NSR provisions as an enforcement club. The latest target in EPA’s crosshairs is the Detroit Edison Monroe Power Plant. Late last month, DOJ filed a complaint alleging violations of PSD/NSR requirements in connection with a project to replace the high temperature reheater and the economizer at Monroe Unit 2. Aside from the broad sign that EPA remains committed to these cases, the most recent action is notable for at least two reasons:
The suit names both… More
My apologies if this post is a mash note to Judge Wilkinson. Sometimes a decision is written with such clarity and simplicity that you have to sit up and take notice. Such is the case with yesterday’s decision in North Carolina v. TVA, reversing the District Court decision imposing an injunction against four TVA plants that would have required installation of additional controls for NOx and SO2 , notwithstanding the absence of any allegation that the plants were violating their permits under the Clean Air Act. My apologies also to my friends in the environmental community and the Massachusetts AG’s office, who… More
Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable. Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this, instead relying on their… More
Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures, where those drainage structures ultimately deposited stormwater containing hazardous substances into Commencement Bay —… More
Last year, I analogized PRP efforts to have CERCLA’s unilateral administrative order provisions declared unconstitutional to Chevy Chase’s repeated announcements during the first year of Saturday Night Live that Francisco Franco was still dead. Eventually, that joke wore out. With yesterday’s decision by the D. C. Circuit Court of Appeals, in General Electric v. Jackson, upholding EPA’s UAO authority, these legal challenges may be similarly about to wear out.
The analysis in GE v. Jackson is pretty straightforward. EPA may not obtain fines or treble damages if a PRP defies a UAO unless the agency goes to court and the court… More
When the Burlington Northern decision was first announced, I concluded that “never has the Supreme Court done so much by doing so little.” On May 5, Judge John Mendez, of he Eastern District of California, proved me at least half right. In United States v. Iron Mountain Mines, joint and several liability was imposed on the defendants in 2002. The 2002 decision stated that “given the nature of pollution at the site, it would be difficult to identify distinct harms.” The court did not analyze whether there was a reasonable basis for apportionment of liability.
Following the Burlington Northern decision, the… More
Last year, I noted that EPA had made its ECHO data base more user-friendly, creating a web-based map of enforcement actions. Last week, EPA took the effort a step further, at least with respect to Clean Water Act enforcement action. EPA’s Clean Water Act Annual Noncompliance Report, or ANCR, is available on the web in an interactive format that allows interested citizens to see where the noncompliance and enforcement action is taking place.
As some of my clients are unfortunately aware, I’ve been seeing a lot of enforcement action recently, at both the federal and state level. It’s not clear long… More
Last week, Judge Thomas Varlan handed the power plant sector a major win in the NSR enforcement arena, ruling that economizer and superheater replacement projects in 1988 at the TVA Bull Run plant were routine maintenance not subject to NSR/PSD regulations. Judge Varlan ruled for the TVA notwithstanding that:
The projects cost millions of dollars (but less than $10M each)
They extended the life of the plant by 20 years
The costs were identified as capital, not maintenance, expenses
Last week, Judge John Darrah handed the government a defeat in a PSD/NSR enforcement action, when he ruled that the requirement to obtain permits under the PSD program prior to making major modifications was solely a pre-construction obligation and did not constitute a continuing violation.
United States v. Midwest Generation was one of the recent wave of government PSD/NSR actions, filed last summer. The problem with the government’s case was that Midwest Generation had purchased the six facilities at issue in the case from Commonwealth Edison in 1999 and all of the alleged changes but one were made prior… More
The U.S. Securities and Exchange Commission (SEC) issued interpretive guidance yesterday which requires publicly traded companies to consider the impacts of climate change – both the physical damage it could cause, as well as the economic impacts of domestic and international greenhouse gas emissions-reduction rules – and disclose those risks to investors. As we noted when discussing the potential for this announcement in October, the disclosure requirements are likely to affect companies in a wide range of industries.
EPA announced yesterday that it had reached a settlement with Duke Energy to address allegations of New Source Review violations at Duke’s Gallagher coal-fired generating plant in New Albany, Indiana. A jury had already found Duke liable for certain NSR violations at the plant. The settlement obviates the need for a remedy trial, which had been scheduled for early 2010.
The settlement requires Duke Energy to repower Units 1 and 3 at Gallagher with natural gas or shut them down and to install emission controls at Units 2 and 4. Duke will also pay a $1.75 million penalty and spend… More
EPA has published its annual Compliance and Enforcement Annual Results FY 2009. It always makes interesting reading. This year, EPA has added something new: a web-based map showing the location of all enforcement actions, with links to summaries of the specific actions taken. It’s actually a little tricky to navigate. I had to find an area of interest and zoom in far enough for the dots to be replaced by flags to be able to click on particular sites and obtain the detailed information.
I can see NGOs making a lot of use of… More
Desperate Times, Desperate Measures? Massachusetts Environmental Agencies Look to Reinvent Themselves
On the be careful what you wish for front, Massachusetts Energy and Environment Secretary Ian Bowles announced yesterday an effort to examine “options for changes in administrative structures and programs to meet environmental goals in light of budget challenges.” The announcement identifies three separate areas of investigation:
Public-Private Partnerships – This makes a lot of sense, but, based on the announcement, seems to be too narrowly focused. The announcement indicates that the review will focus on management of properties owned by the Department of Conservation and Recreation. However, we shouldn’t just be looking at whether to let Disney sponsor the… More
Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:
EPA wants to shorten the duration of RD/RA negotiation
EPA is going to use the heavy hammer of unilateral administrative orders, or UAOs, to keep PRPs’ feet to the fire and ensure that negotiations move quickly.
PRPs will likely… More
In a story from today’s Daily Environment Report, Cynthia Giles, the new Assistant Administrator for Enforcement at EPA, stated that she was looking increase the number of criminal investigators at EPA, noting that
Criminal enforcement is a very important part of our arsenal in achieving compliance and has a powerful deterrent effect. It’s important to us that we’re out there and that we pursue the criminal cases.
There’s no doubt that, in a simplistic way, she is correct. Generally speaking, as the plausible threat of enforcement increases, the amount of noncompliance will be expected to decrease. However, for criminal enforcement to… More
In another sign that the NSR program is alive and well under the Obama administration, the United States (together with the State of Illinois, filed suit Thursday against Midwest Generation, alleging violations of NSR requirements at six coal-fired power plants. Although the action is not too surprising, given that the Bush EPA had issued a notice of violation to Midwest Generation in 2007, it remains noteworthy. Each new prosecution serves to remind generators that failure to comply with NSR rules can lead to significant costs.
Of course, that in terrorem effect on other generators is precisely what the administration and environmental… More
As we have reported, EPA and MADEP have both been taking steps over the past year to broaden the scope of their stormwater programs beyond existing regulation under the rules concerning stormwater discharges associated with industrial or construction activity. EPA has proposed using residual designation authority in Maine and Massachusetts and the MADEP proposed sweeping rules governing existing private facilities.
In the regulated community, there has been substantial concern that these efforts have focused too narrowly on private properties, with the MADEP proposed rules, for example, potentially requiring costly retrofits on many properties without consideration of whether there… More
EPA announced today that it had reached yet another six-figure penalty settlement in an anti-idling case. This time, the penalty was $650,000. This is one of the larger penalties EPA has obtained in this area. There appear to be several reasons for the magnitude of the penalty. First, the defendant, Paul Revere Transportation, LLC, was apparently a recidivist. It has been the subject of an anti-idling enforcement action in 2003. Second, Paul Revere refused to settle, making EPA go to trial to prove liability. Finally, at the trial, EPA established a substantial number of idling violations. Facing a separate trial… More
I assume that environmental agencies’ focus on the annual dollar total of enforcement fines and penalties drives my clients as crazy as it does me. After all, the correlation between such figures and any environmental outcomes is pretty limited. Indeed, less enforcement may mean more compliance rather than more undetected violations.
It thus comes as at least limited good news from Inside EPA that EPA is looking at ways to measure the impact of enforcement efforts other than by measuring the amount of fines and penalties. Instead, as indicated by a presentation made last month by EPA’s Office of Compliance,… More
While some of my colleagues are laboring in the climate change vineyards (and we should have posts soon summarizing the House bill), I thought I would note another interesting enforcement decision issued this week. United States v. Oliver is, in some respects, a run of the mill decision. A mom-and-pop medical waste incinerator (the adjective is the court’s not mine; it does give one pause) failed for several years to comply with EPA regulations governing such facilities. EPA sought and obtained a permanent injunction ceasing facility operations until the defendants can demonstrate to the satisfaction of EPA and the… More
Last week, Judge Larry McKinney issued an order requiring to shut down three coal-fired generating units at its Wabash Station facility by no later than September 30, 2009. The decision actually struck me as a thoughtful analysis of injunctive relief issues in a situation where a violation of NSR regulations had already been proven. Although the decision has gotten most press for the order shutting down the units, it covers a number of issues important to injunctive relief situations, and there are some nuggets which are potentially useful to generators; it is not a one-sided decision. Here are some highlights:
Earlier this week, the jury reached a verdict in the Cinergy – now Duke Energy – NSR retrial. The short version is simple:
Condensor retubine – no need to go through NSR
Pulverizor replacement – requires NSR
I don’t know all of the details of the case. For example, I don’t know if the pulverizer capacity was expanded when they were replaced. If any readers know the details and want to share them, I’d be grateful.
One more note on the Burlington Northern decision. A client of mine has already noted that one impact of the decision will be to result in more litigation over divisibility, which will be good for private lawyers (ouch!). She’s right, as my clients always are, but she shouldn’t be.
Litigation should only increase if EPA does not adjust its settlement demands. If EPA responds appropriately, and makes demands which reflect a fair resolution of a divisible liability, then there shouldn’t necessarily be more litigation than there is today. However, if EPA continues to negotiate with PRPs as though liability is always… More
Those of us who have practiced in the Superfund arena for some time know that the government, in those rare cases where it has been forced to litigate, has used the same oral argument in every case: “Good morning, your honor. My name is ______. I represent the government in this action and we win.” Today, the Supreme Court made clear that that the government now needs a new oral argument template.
As some of my clients know all too well, I’ve been spending a lot of time on some Superfund matters recently. Although I can’t remember a period when I didn’t have at least one moderately active Superfund case, significant immersion in complex remedial decision-making and negotiations provides an unwelcome reminder just how flawed CERCLA is. Almost 20 years after the acid rain provisions of the Clean Air Act ushered in wide-spread acceptance of the use of market mechanisms to achieve environmental protection goals and the state of Massachusetts successfully privatized its state Superfund program, the federal Superfund program, like some obscure former… More
We posted recently about the revival of EPA’s NSR enforcement program. Now, yet another shoe has dropped. The Center for Biological Diversity has announced the creation of the Climate Law Institute, the purpose of which is to use citizen law suits under existing laws to advance regulations intended to address climate change. The press release states that the Institute has $17 million in funding with which to pursue its mission.
While that mission will focus on climate change, as its name implies, it will not be limited to litigation under the Clean Air Act. It was the CBD which led the… More
In addition to our post yesterday and the items highlighted in the New York Times Green.Inc blog on the difficulties facing new and existing coal-fired power plants this week, the Environmental Protection Agency and the Department of Justice have launched what they call a new national crackdown targeting coal-fired plants that violate the Clean Air Act.
As the first piece of this campaign, the agencies filed suit on Wednesday against a Kansas power plant for PSD violations dating back to 1994, and following a notice of violation issued to the plant owners in January 2004.
EPA and DOJ had been criticized for not… More
The EPA and DOJ announced yesterday that Kentucky Utilities (KU), a coal-fired electric utility, has agreed to spend approximately $135 million on pollution controls to resolve violations of the Clean Air Act New Source Review program. KU will also pay a $1.4 million civil penalty plus $3 million in implementing supplemental environmental projects, or SEPs. Finally, KU will also surrender over 50,000 SO2 allowances shortly after entry of the consent decree, and annually surrender any excess NOx allowances resulting from the installation of pollution control equipment.
The consent decree, which covers one of the three coal-fired electric generating units at the E.W. Brown plant in Mercer County, Kentucky, requires… More
Readers of a certain age will recall Chevy Chase’s Weekend Update segment during the first year of Saturday Night Live, when, for a number of shows, he would report that Francisco Franco was still dead. (And isn’t it great that there is actually a Wikipedia article on the subject of Franco still being dead!).
This segment was brought to mind by the report of this week’s decision out of the District Court for the District of Columbia, in the case of General Electric v. Jackson, affirming that EPA’s authority to issue unilateral administrative orders… More
In a decision that could have significant impact on states’ efforts to limit cross-border pollution, Judge Lacy Thornburg of the District Court for the Western District of North Carolina issued an affirmative injunction against the TVA this week, requiring it to install pollution control equipment at its facilities located nearest to North Carolina and imposing specific emissions limits from those facilities. The basis for the injunction was a finding, after trial, that the facilities created a public nuisance as a result of the air pollution transported from those facilities to North Carolina.
The decision is notable for… More
While many economists are worried about the possibility of deflation in the current economic crisis, EPA still is concerned about inflation – specifically inflation in the amount of statutory civil penalties under statutes enforced by EPA. In a Federal Register notice dated December 11, 2008, EPA announced increases in its civil penalties.
Some of the increases are not trivial. It is of course true that EPA rarely obtains, or even seeks, the maximum permissible penalty, but the maximum does set the boundary for negotiations with the agency.
All joking aside, EPA has a statutory obligation under the Debt Collection… More
Last week, I posted about the Pollard decision, which made clear that local boards to not have unlimited discretion to ignore evidence provided by project proponents. This week, the shoe is on the other foot, so to speak. In Macero v. MacDonald, the Massachusetts Appeals Court reversed a decision in favor of a project opponent, on essentially the same analysis as that in Pollard.
In Macero, the developer sought a variance from state and local septic system regulations. The developer provided some information from a professional. However, the local Board of Health did not, apparently, formally… More
Developers and others who appear before local boards know what an uphill battle it is to challenge decisions of those boards. After all, there’s a reason for the existence of the phrase “You can’t fight City Hall.” Of course, it’s never a good idea to fight City Hall unless you absolutely have to do so, but a recent decision from the Massachusetts Appeals Court gives some hope to those forced into that position by a board taking an extreme position.
Hopefully, since I like to think the readers of this blog are largely law-abiding, this post will not be relevant to very many of you, but it seemed newsworthy nonetheless. On December 10, EPA announced a new web site dedicated to helping to locate and bring to justice fugitives from environmental crimes. The new web site includes profiles of 25 men wanted for a variety of environmental claims.
The web site is largely self-explanatory, but I did want to note two items. First, in a transparent bid to limit my liability, I will note, as does EPA on the web site,… More
On the better late than never front, I finally got around to reviewing the still relatively recent decision in United States v. Cinergy Corp. regarding the scope of injunctive relief available with respect to violations of the Clean Air Act’s New Source Review, or NSR, provisions. Although the decision was issued in mid-October, its significance is great enough to mention here.
As most readers here will know, the Cinergy case is one of the remaining NSR enforcement cases originally brought by the Clinton administration. The defendants had previously been found liable for NSR violations at the Wabash River… More
Can a party found liable of violating the Clean Air Act’s New Source Review provisions be required to reduce future pollution more to mitigate emissions caused by past violations? According to a recent U.S. District Court decision, maybe.
In U.S. v. Cinergy Corp., S.D. Ind., No. 99-1693, decided October 14, 2008, the first court to rule on whether retroactive, as opposed to prospective relief, is available under Section 113 of the Clean Air Act found that the court does have the authority to grant such relief. Although the court stopped short of ordering this relief (procedurally, this opinion was… More
As those of us who have practiced in the Superfund arena for some time know, in the early years of Superfund litigation, such litigation was, from the defendant’s perspective, brutish and short, if not nasty and mean. The DOJ attorney would, in essence, march into court, state “I am from the government; I win,” and the case would be over.
In recent years, that approach has not proven quite so uniformly successful. The key case in the defendants’ arsenal is United States v. Bestfoods. In Bestfoods, the Supreme Court looked to traditional common law principles regarding corporate law… More
EPA’s enforcement efforts under the New Source Review, or NSR, program have had more twists and turns during the past ten years than it is possible to catalogue, at least in a blog post short enough to avoid crashing the server. In brief, EPA began under the Clinton administration an ambitious effort to bring NSR cases against numerous power plants. Those efforts have had substantial, though not perfect, success in court. Settlements with some targets have also yielded hundreds of million dollars in agreed-to upgrades in plant emission controls.
The Bush administration, of course, sought to amend the NSR regulations… More