Category Archives: NPDES

In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes – years after the Army Corps had issued the permit containing the specification.  Indeed, Daily [...]

Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982.  The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014. The proposed rule actually sets [...]

As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act.  On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense [...]

Today, EPA formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources.  As we have previously noted, in response to concerns about the basis for EPA’s numeric turbidity standards, EPA had stayed the numeric standards.  It is now formally proposing to withdraw them. EPA also responded to concerns that [...]

Yesterday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit.  The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that [...]

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries [...]

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits [...]

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the [...]

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit. The most contentious [...]

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall [...]

The decision by the First Circuit Court of Appeals on Friday in Upper Blackstone Water Pollution Abatement Control District v. EPA confirms how difficult it is to challenge EPA NPDES permitting decisions. The case involves nutrient loadings in the Blackstone River and, ultimately, Narragansett Bay. As the opinion discusses, phosphorus in the Blackstone River and [...]

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making. The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton [...]

Earlier this week, I noted that EPA had announced that it was reconsidering parts of the Utility MACT rule and staying its effectiveness for three months. Yesterday, EPA announced that it was delaying for 11 months final promulgation of its cooling water intake structure rule for existing facilities under the Clean Water Act. Reaction was [...]

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 [...]

Yesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay. Pardon me if I seem to be posting a lot of dog bites man stories recently. Although it should not come as a surprise that a trading [...]

On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that. EPA is not in a good [...]

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 [...]

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. 

Those following stormwater issues know that EPA is overdue to promulgate a proposed rule for stormwater controls at post-construction sites. The rule has been extremely controversial, with groups such as the Associated General Contractors arguing that EPA has no authority to promulgate post-construction rules. EPA was originally scheduled to issue the proposed rule by September 30. When EPA [...]

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard. After EPA and the Army Corps of Engineers issued [...]

Yesterday, the North American Electric Reliability Corporation, or NERC, released its 2011 Long-Term Reliability Assessment. The NERC report identified environmental regulations as one “of the greatest risks” to reliability. Much of the focus of the concern was on EPA’s MACT rule for hazardous air pollutants and its 316(b) rule for cooling water intake structures. While expressing uncertainty about [...]

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already [...]

Late last week, Greenwire reported that EPA is delaying its proposed construction general permit, or CGP, for stormwater. The delay is certainly a victory for the real estate industry, which has been fighting hard to delay the rule and, in particular, its numeric turbidity limit. The industry had complained about the data on which the standard was [...]

The fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary [...]

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 [...]

After a relatively quiet period, there were a number of items of interest on the air/climate front this week. First, AEP announced that upcoming pollution controls would result in shutting down 6,000 megawatts of coal-fired capacity, or 25% of its coal fleet. AEP also announced that it would spend $6 billion to $8 billion in bringing the [...]

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I [...]

For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least [...]

Sometimes I’m so timely I can’t stand it. This morning, I posted about the difficulty in challenging regulations under Massachusetts law. Later this morning, the SJC agreed. In Entergy v. DEP, the SJC upheld DEP’s authority to regulate cooling water intake structures under the state CWA. Funny how the SJC cited to the same language here as did [...]

Earlier this week, EPA announced its long-awaited revised proposal for a cooling water intake structure rule for existing facilities. Praise is much less interesting than criticism, and thus less conducive to entertaining blog posts, but I’m afraid EPA has left me no choice. Within the confines of what the Clean Water Act requires, EPA seems to have [...]

I don’t normally blog about cases in which I’m involved, but since this one made the front page of the Boston Globe, I suppose it’s sufficiently newsworthy. Yesterday, EPA announced that a settlement had been reached among EPA, MassDEP, our client GenOn Kendall, and the Charles River Watershed Association and the Conservation Law Foundation concerning the [...]

In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters.  The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company’s Spruce No. 1 Mine proposal the death [...]

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 – [...]

Almost all – 46 – states have delegated programs under the Clean Water Act. One criterion that EPA must determine has been satisfied before approving delegation is that the state has the ability to "abate violations of the permit … including civil and criminal penalties and other ways and means of enforcement." EPA’s regulations provide that [...]

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs. Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards [...]

Late July saw some movement on the cooling water intake structure (CWIS) front. On Friday, July 23, in ConocoPhillips, et al. v. EPA, the Fifth Circuit granted EPA’s motion for a voluntary remand of the existing-facilities portion of its Phase III regulation. The Phase III rule, promulgated in 2006, addressed CWIS at existing small power [...]

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 [...]

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 [...]

EPA is proceeding with its plan to establish a new program to regulate stormwater discharges from new development and redevelopment, with a target date for a final rule by November 2012. The next step: the reissuance of draft mandatory questionnaires that, once finalized, will be sent to various stakeholders, including approximately 738,000 owners and developers [...]

EPA Region 1 continues to roll out new programs on the stormwater front, and this week’s development is particularly important for private property owners in the Charles River watershed. The agency released proposed amendments to the Residual Designation for the Charles River (“RDA”) and a Draft General Permit for Residually Designated Discharges. While the proposed permit only [...]

Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidance – effective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from [...]

Earlier this week, EPA announced release of a draft North Coastal Small Municipal Separate Storm Sewer System General Permit. Once finalized, the General Permit will affect 84 communities in eastern Massachusetts. EPA has noted that similar MS4 General Permits will also be rolled out for the rest of the Commonwealth. The draft General Permit is [...]

Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will [...]

On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly [...]

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 [...]

As many readers of this blog will have already learned, the Supreme Court issued its long-awaited decision in Entergy v. Riverkeeper yesterday. The Court reversed the Second Circuit Court of Appeals and held that EPA was within its authority to consider cost-benefit analysis in setting standards for cooling water intake structures under § 316(b) of the Clean [...]

Demonstrating that the recent announcement of new stormwater controls for the Charles River in Massachusetts were not an aberration, EPA, joining with the Maine DEP, announced last Friday that it will be imposing new stormwater regulations for discharges into Long Creek, which ultimately flows into Casco Bay. Responding to petitions from the Conservation Law Foundation, [...]

Although some of you may think that the regulatory agencies are now all climate change all the time, Massachusetts DEP has demonstrated that there is still life in some more traditional aspects of environmental regulation. MassDEP has just proposed sweeping new stormwater regulations that would go far beyond the traditional EPA model of regulating construction sites [...]

On September 22, EPA issued a new Stormwater Multi-Sector General Permit (MSGP) to cover 4,100 facilities with discharges associated with an industrial activity. The permit replaces the MSGP that was issued in 2000 and expired in October 2005. The expired permit continued to be valid for facilities that were covered by the permit at the [...]