Believe It Or Not, The Clean Water Act May Actually Help You

Most industrial sites have wastewater discharges, and most people know those discharges must be permitted under the Clean Water Act (CWA). What many people do not know, including some consultants, is the CWA has a “permit shield” that could protect your company or client from liability to a regulatory agency or as a result of a citizen suit by a third party. Continue reading “Believe It Or Not, The Clean Water Act May Actually Help You”

EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands

During the golden age of discovery, an explorer arriving at the mouth of an unknown river would plant his country’s flag and claim all lands drained by that river for his sovereign. In modern times, there is no need for any flags or ocean voyages. Our sovereign simply publishes a proposed rule to accomplish the same thing.

The Clean Water Act (CWA) prohibits discharges of dredged or fill material into “navigable waters,” which are defined in the CWA as the “waters of the United States.” Regulations published by the U.S. Army Corps of Engineers (Corps) provide an expansive definition of waters of the United States, which serves to delineate the scope of the Corps’ jurisdiction under the CWA over those waters, which include wetlands. A permit from the Corps is required to place material in wetlands or other waters deemed jurisdictional.

The Corps has released a proposed rule that provides an even more expansive definition of U.S. waters, which serves to expand its jurisdiction over tributaries and wetlands far removed from any traditional navigable waters. If the proposed rule becomes final as written, permits will be required for activities in areas that were not previously regulated and that could be dozens of miles from navigable waterways. Continue reading “EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands”

EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants

In a recent appellate court decision that is sure to create a great deal of uncertainty and hamper development efforts, the Court of Appeal for the D.C. Circuit approved EPA’s authority to veto permits issued by Army Corps of Engineers (Corps) well after they are issued. In fact, based on this ruling, these may do this ‘whenever’ they want. Mingo Logan Coal Company, Inc. v. EPA, No. 12-5150, April 23, 2013.

The Clean Water Act (CWA), Section 404(a), authorizes the Corps to issue permits for the discharge of fill material into waters of the United States at specified disposal sites. This authority, however, is subject to the CWA Section 404(c), which provides authority to EPA’s Administrator “to prohibit the specification (including the withdrawal of specification) of any” disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect.” It is the timing of EPA’s actions (‘whenever he determines’) that will create problems. Continue reading “EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants”

The Sackett Decision —A Major Victory for Property Owners

The Environmental Protection Agency (EPA) has acknowledged the precedential effect of the landmark Sackett case and wisely decided to expand the decision’s reach beyond the Clean Water Act to a designated group of actions similar to the one at issue in that case. For many, though, the expansion does not go far enough.

In Sackett v. EPA, 132 S.Ct. 1367 (2012), the United States Supreme Court provided a major victory to landowners seeking pre-enforcement review of compliance orders issued under the Clean Water Act. The Supreme Court decision in Sackett changed the entire review framework.

The Sacketts placed dirt and rock on about a half-acre of their property, which the EPA claimed contained wetlands. EPA sent a compliance order to the Sacketts, requiring the Sacketts to, among other things, immediately undertake activities to restore the lot in accordance with an EPA-created Restoration Work Plan and to provide EPA access to the lot and to all records and documentation related to the conditions at the lot. EPA warned the Sacketts that a failure to comply could result in penalties of $37,500 per day, plus a like amount for a failure to comply with the compliance order.

Prior to this decision, the Sacketts would not have an opportunity to contest this order in court unless and until EPA sought to enforce it judicially or sought penalties for the underlying violation. The Supreme Court made clear that judicial review was available under the Administrative Procedure Act (APA) because the compliance order was a “final agency action for which there is no other adequate remedy in a court.” 5 USCA §704. Based on the Supreme Court’s review of the compliance order and APA, the compliance order was deemed a ‘final agency action for which there is no other adequate remedy in a court.’ As a result, the Sacketts were allowed to seek judicial review of the compliance order under the APA.

The EPA has now extended the logic of the Sackett ruling to other ‘final agency actions’ under different statutes. Bowing to reality and saving litigants countless legal battles, EPA issued a memorandum, dated March 21, 2013, in which it advised its regional offices that ‘administrative enforcement orders’ contain language notifying the recipient that judicial review of the order is available. Specifically included in the scope of the new policy are:

  • FIFRA, Section 13: Stop Sale, Use, or Removal Orders
  • CAA, Sections 113(a)(5) and 167: Stop Work Orders
  • CAA, Section 113(a): Administrative Compliance Orders
  • SDWA, Section 1414: Administrative Compliance Orders
  • SDWA, Section 1431: Emergency Compliance Orders
  • EPCRA, Section 325(a): Administrative Compliance Orders
  • RCRA, Sections 3008(a) and 9006(a): Administrative Compliance Orders
  • RCRA, Section 3008(h): Interim Status Corrective Action Orders
  • RCRA, Section 9003(h): Corrective Action Orders

However, there are several very important regulatory decisions that are not included. First, jurisdictional determinations issued by the EPA or the Army Corps of Engineers are not included. In Belle Co., LLC v. U.S. Army Corps of Engineers, a Louisiana district court ruled that Sackett does not extend to such determinations, but the decision is under appeal to the U.S. Court of Appeals for the 5th Circuit. Second, notices of violation (NOVs) under the Clean Air Act were excluded probably because an NOV does not order or compel any type of action. Third, imminent and substantial endangerment orders issued under RCRA Section 7003 are not included. Finally, orders under CERCLA are specifically excluded from judicial review. 42 USCA 9613(h).

Despite the exceptions, acknowledging judicial review of agency decisions is a step in the right direction for those who receive such an order. Ironically, though, it may also mean that any such order will be able to withstand judicial review. As the EPA will know that it may be challenged, it is most likely to ensure that the facts and evidence are available in the record to support the order.

LDEQ’s Spill Prevention and Control Rule Amendment

LDEQ finalized amendments to the Spill Prevention and Control Rule (SPC Rule) (LAC 33:IX.Chapter 9) on August 20, 2010.  WQ079.  Three main changes will be addressed.

1. A definition of ‘oil’ is provided.  Oil is “any kind or form of oil, including but not limited to: fats, oils, or greases from animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and other oils and greases including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, and oil mixed with waste other than dredged spoil.”  Sec. 901.D.  This definition is identical to EPA’s current regulatory definition, which was added in 2002.  40 CFR 112.2; 67 Fed. Reg. 47075-6 (July 17, 2002). Continue reading “LDEQ’s Spill Prevention and Control Rule Amendment”

Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again

Clean Water Restoration Act, S.787

This bill (S. 787) seeks to substantially expand the jurisdictional reach of the Clean Water Act, and that of the regulatory agencies administering the Act, by amending two key definitions. S. 787 will remove the definition of ‘navigable waters’ that has been included in the Act since its enactment and will replace it with a new, broadly defined statutory term, ‘waters of the United States.’ That term has been defined in EPA and Corps regulations for many years. However, the bill will provide a statutory definition of the ‘waters of the United States’ that expands the prior regulatory definition to include, among other things, “all interstate and intrastate waters and their tributaries” and “wetlands” “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” Note that the definition not only includes the actual waters, but ‘activities affecting these waters.’ Continue reading “Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again”