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Yesterday, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers proposed a rule to rescind the 2015 Clean Water Rule and recodify the definition of “waters of the United States,” known as WOTUS, that existed before 2015.  EPA and the Corps intend to re-evaluate and revise the WOTUS definition consistent with the Executive Order issued on February 28, 2017.  In the meantime, EPA states that the proposed rule will be implemented consistent with “Supreme Court decisions, agency guidance, and longstanding practice.”

By rule published in the Federal Register today, EPA is staying the New Source Performance Standards (NSPS) and Emissions Guidelines (EG) final rules for municipal solid waste landfills, in their entirety, for 90 days pending reconsideration.  The rules are found at 40 CFR Part 60, Subparts Cf and XXX and had been published on August 19, 2016.  The 90-day period is effective from today, May 31, through August 29, 2017.

In a letter dated May 5, 2017, EPA announced that it would be reconsidering the following topics: (1) tier 4 surface emission monitoring; (2) annual liquids reporting; (3) corrective action timeline procedures; (4) overlapping applicability with other rules; (5) the definition of cover penetration; and (6) design plan approval.

This stay has no effect on the existing rules at 40 CFR Part 60, Subparts WWW and Cc, which municipal solid waste landfills must continue to comply with.

A federal district court in Indiana recently ruled on whether email communications with environmental contractors hired by an attorney are protected from discovery. In Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 WL 1361308 (N.D. Ind. April 14, 2017), the Court held that the communications were not protected by the attorney-client privilege, but were, in part, protected by the work-product doctrine.  This decision provides much-needed guidance to lawyers when retaining environmental consultants on behalf of their clients.

The Valley Forge litigation involved a dispute between the owner of a scrap metal recycling facility and its insurer over a settlement agreement relating to an environmental clean-up at the insured’s property.  The settlement agreement allocated responsibilities for the clean-up pursuant to an agreed order with the Indiana Department of Environmental Management (IDEM).  USEPA also later asserted enforcement claims against the defendant.

Following these claims, the defendant’s attorney hired two environmental consultants – one to design a stormwater management system to treat PCB-contaminated stormwater and another to perform site remediation.  The attorney initially retained both consultants directly, with the defendant’s approval; however, the defendant was found to have later entered into a standard construction contract directly with one of the contractors.

The Court performed an in camera review of 185 emails or email threads with the environmental contractors that the defendant had withheld as privileged in response to discovery requests by the plaintiff.  Applying Indiana law, the Court held that none of the emails were protected by the attorney-client privilege.  The Court stated that, while the “attorney-client privilege can extend to consultants hired by the attorney on behalf of a client,” only communications made for the “primary purpose” of obtaining legal advice from the lawyer come within the attorney-client privilege.  These protected communications can include reports made by third parties from gathering information from the client, where the primary purpose of the report is to assist a lawyer in giving legal advice.

In this case, the Court held that that the primary purpose in retaining the environmental contractors was not to provide legal advice, but to provide environmental remediation services.  The Court further held that the attorney’s retention of the contractors, by itself, was not sufficient to bring the contractors within the scope of the attorney-client privilege, nor was labeling the communications as “privileged and confidential” or “attorney-work product.”

The Court then addressed whether the communications were protected by the attorney work-product doctrine, applying federal law.  The Court noted that the doctrine is “distinct from and broader than the attorney-client privilege,” and applies to documents prepared in anticipation of litigation by any representative of the client, “regardless of whether the representative is acting for the lawyer.”  The primary motivating purpose must be to “aid in possible future litigation.”

The record in this case supported the defendant’s claim that the motivating factor to complete the clean-up of its facility was the threat of litigation with IDEM and USEPA.  All of the emails at issue were created after the lawsuit was filed and after the parties became aware of the claims by IDEM and USEPA.  The fact that the emails also served an ordinary business purpose of completing the environmental remediation did not deprive them of their protection under the doctrine because the defendant was able to show that the anticipated litigation was the driving force behind the preparation of the requested documents.

In performing the in camera review, the Court declined to extend the protections of the work product doctrine to transmittal communications that did not contain any attorney comment, impressions or strategy, billing records or emails that merely pertained to administrative, logistical or scheduling matters.  The rest of the emails were held to be protected by the work-product doctrine.

 

Filling in a gap in its regulations, Kentucky proposes new regulations for technologically enhanced naturally occurring radioactive materials or TENORM. The regulations were in response to concerns about the management of radioactive materials from oil and gas production.  A public hearing is to be held on the proposed regulations on June 21, 2017.

The Regulations can be found here.

We will be following these regulations and providing updates here on Environmental Law Next as they progress.

The rollback of the controversial Waters of the United States (WOTUS) Rule is underway.  Last week, President Trump issued an Executive Order directing the Environmental Protection Agency (EPA) and the Department of the Army (Army) to review and rescind or rewrite the WOTUS rule, which was adopted in 2015 by the previous administration.  That rule was intended to clarify which waterways the EPA and Army can regulate under the Federal Clean Water Act (CWA), which requires a federal permit for the discharge of pollutants into “navigable waters,” defined as “waters of the United States.”  The CWA expressly reserved jurisdiction over non-navigable waters to the states.

The question of what is a “water of the United States” has generated considerable uncertainty for the states, small businesses, agricultural communities, developers and environmental organizations.  The federal agencies have been increasingly exercising federal jurisdiction over small waterways, ditches and ponds, and had been rebuked in 2001 and 2006 by the U.S. Supreme Court for attempting to expand federal regulation to non-navigable waters.  In the 2006 decision, Rapanos v. United States, 547 U.S. 715 (2006), Justice Scalia wrote for the plurality opinion and very adeptly summarized the burden of federal regulation on those who would deposit fill material in locations designated as “waters of the United States”:

In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people.” . . .  The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes. . . . In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines.

The WOTUS rule was an attempt to better define the scope of “waters of the United States” in light of these decisions, but was seen by property right advocates as a massive power grab by the federal agencies, as it gave federal authority over small waterways, such as wetlands, headwaters, small ponds and, as stated by President Trump during the Executive Order signing ceremony, “puddles.”  The rule was challenged by over 30 states.  The U.S. Court of Appeals for the 6th Circuit issued a nationwide stay of the rule on October 15, 2015, pending further action of the court.

The Executive Order does not change anything immediately, because the rule is already on hold and it could take years for the EPA and Army to roll it back through a formal regulatory process.  The EPA and Army issued a Notice of Intent that was published in the Federal Register on March 6th, announcing their intention to review the rule through a new rulemaking.   The EPA Acting General Counsel also sent a letter to Attorney General Jeff Sessions that day informing Mr. Sessions of the pending review, so that this information could be used to inform the courts of the review in any litigation involving the WOTUS rule. The Executive Order directed the EPA and Army to consider interpreting the term “navigable waters” in a matter consistent with the plurality opinion of Justice Scalia in Rapanos.  If that is the case, then the EPA and Army will be regulating “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance” as “streams,” “oceans,” “rivers,” “lakes,” but not puddles.

President Trump promised on the campaign trail that he would repeal the WOTUS rule, as well as the Obama administration’s Clean Power Plan.  With his record of checking off campaign promises, we should expect an Executive Order shortly instructing the EPA to begin the process of dismantling the Clean Power Plan, as well.

On November 28, 2016, the EPA published its Hazardous Waste Generator Improvements Rule, finalizing a much-needed update to the 30-year old Resource Conservation and Recovery Act (RCRA) hazardous waste generator regulations.  The Rule includes over 60 changes to the hazardous waste generator regulations to make them easier to understand, which will presumably increase compliance, and provide greater flexibility in how hazardous waste is managed. The Rule will affect more than 500,000 industrial entities in virtually every industrial sector that generate hazardous waste regulated under the RCRA Subtitle C regulations.

Of the over 60 changes, the following are to be noted:

  • ­Reorganization. The Rule reorganizes and consolidates most all of the generator regulatory program into 40 CFR Part 262.
  • Clarifications.  EPA is confirming and clarifying some program requirements that were never formally implemented, for example:
    • A generator’s hazardous waste determination must be accurate and made at its point of generation before any dilution, mixing or alteration.  However, the Rule does not require documentation of non-hazardous waste determinations.
    • Generators can use “generator knowledge” to determine whether a listed and/or characteristic hazardous waste has been generated.
    • A generator can only be in one category for a calendar month.  Definitions of “acute hazardous waste” and “non-acute hazardous waste” have been added to aid in determining a regulatory category.
    • Small quantity generators (SQG) and large quantity generators (LQG) must identify and mark RCRA waste codes on containers prior to sending hazardous waste off-site.
  • Very Small Quantity Generators (VSQG). Previously known as “conditionally exempt small quantity generators,” a VSQG can now send their hazardous waste to LQGs under the control of the same person to allow consolidation before sending it on to management at a RCRA-designated facility.
  • Episodic Generation. The Rule addresses “episodic generation” of hazardous waste, which can occur during a planned event (i.e., periodic maintenance such as tank cleanouts) or unplanned event (i.e. production upset conditions, spill, acts of nature).  In these cases, a VSQG and SQG can maintain their existing generator category and avoid the increased requirements of a higher generator status, provided there is only one event per calendar year with the ability to petition for a second event, and certain notification requirements and duration limits are met.
  • Labeling.  Containers and tank labels must be marked with the words “Hazardous Waste” and indicate the hazards of the contents of the containers using any of several established methods, such as DOT hazard communication, OSHA hazard statement or pictogram, NFPA chemical hazard label or RCRA characteristic.  A description of the actual contents of the containers and tanks is not being required.
  • 50-foot Property Line Requirement. LQGs can now apply for a waiver from the authority having jurisdiction (AHJ) over the fire code when they are unable to meet the 50-foot property line requirement for the accumulation of ignitable or reactive waste.
  • Notification.  LQGs must notify EPA or the authorized state no later than 30 days prior to closing their facility and within 90 days after closing their facility to confirm that it has complied with closure performance standards.  SQGs must re-notify EPA starting in 2021 and every four years thereafter.

These and other changes are discussed in more detail in an EPA webinar that can be accessed here.

The Rule is effective May 30, 2017 for Iowa, Alaska, the territories and tribal lands.  The rest of the states, which are currently authorized to run the RCRA program in their states, will have to incorporate the more stringent provisions from the Rule by July 1, 2018 (or by July 1, 2019 if legislative changes are needed) to maintain their authorized status and can choose to incorporate the less or equally stringent provisions at any time.

Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated.  Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.

An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support.  Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible.  According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period.  Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations.  For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.

It is too early to know whether Mr. Trump will strike the right balance.  His campaign was short on the relevant details.  There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned.  One way or another, the Clean Power Plan is dead.  At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit.  But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.

Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change.  Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020.  He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.

The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form.  Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities.  And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it.  He will now be able to do that.  Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.

The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations.  Many regulations do not actually impose costs and burdens themselves.  To the contrary, they give clarity and predictability to otherwise ambiguous statutes.  The Clean Water Rule was intended to establish when Clean Water Act permits are required.  Without it, costly and time consuming case-by-case evaluations will be necessary.  If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.

Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025.  A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity.  This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.

There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry.  Several likely policies could provide an indirect boon to business, however.  Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal.  Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.

As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.

Donald Trump is set to assume the presidency on January 20, 2017.  At Environmental Law Next we are taking a look at what that will mean for American environmental law.  We will be providing our own perspective as well as directing our readers to the insights of others that are keeping an eye on what appears likely to be a distinctly new era in the field.

Mr. Trump indicated that he would diverge drastically from his predecessor’s approach to environmental protection.  On the stump he promised time and again that he would significantly roll back environmental regulations, and even eliminate the EPA altogether.

It is unlikely Mr. Trump will be able to dump the EPA outright, even if he actually wants to.  It would take an act of Congress and might be too much to stomach even for some Republicans.  And unless the “nuclear option” is invoked in the Senate, the Democrats there will retain the ability to filibuster even a united Republican effort.  Similarly, regulations on the books cannot just be erased with the stroke of a pen.  But by substantially reducing enforcement activities and re-writing some key regulations, Mr. Trump could go a long way towards neutralizing the agency for the duration of his presidency.

What would a retreat of the federal government from this space mean for the environment?  Certainly it would suffer, and probably not insignificantly.  But a crippled EPA would not lead to a wholesale abandonment of environmental standards.  Rather, meaningful environmental regulation would be transferred to the states – at least those states with progressive environmental agendas – and result in a patchwork of substantive standards and enforcement procedures.  The authority is already there.  Most states have been delegated the power to administer some of the major federal environmental regulatory regimes, such as Clean Air Act and Clean Water Act permitting, in addition to their own environmental protection laws.  There are also citizen suit provisions in many statutes that allow environmental groups and others to compel compliance through the courts.

Regulatory gaps might also revive, to some extent, the role of tort law in controlling the degree to which industrial pollution is permitted to harm individuals.  But the effectiveness of tort remedies for protecting common environmental resources – surface and ground waters, clean air and toxic-free land – is rather limited.  Tort claims, which require proof of causation tied to specific damages, are ill-suited to combating complex, multiple-source environmental degradation.  Acid rain, dangerous levels ground level ozone, and the pollution of major water bodies, for example, are typically caused by the collective emissions from hundreds or thousands of facilities; none of them on their own might be problematic or actionable in tort.

Even with the proper authority to intervene, courts lack the expertise to fashion efficient and effective environmental remedies.  Most states rely on the EPA to determine proper technical requirements and health-based standards.  Questions such as what is the acceptable level of lead in drinking water? How much particulate matter in the air is too much? And what are the proper procedures for cleaning up an oil spill? demand resources and experience to answer well.  These questions are also inextricable from policy decisions more properly made by a political branch of government.

Moreover, tort law is generally reactive.  There is often no cause of action until it is too late and the damage is done.  No court order can revive an endangered species after it becomes extinct.

Mr. Trump claims he will bring a business friendly efficiency to environmental protection while also “ensuring clean air and clean, safe drinking water for all Americans.”  Accomplishing both will require that EPA maintain its leading role.

The Illinois Environmental Protection Agency (IEPA) recently proposed its general “Permit By Rule” or PBR regulations to the Pollution Control Board. The PBR regulations will allow certain emission units at a CAAPP source to be constructed without going through the standard construction permit requirements.  Instead, the owner or operator of the unit is merely required to submit a notice of intent to be covered by a PBR prior to commencing construction. The owner or operator would then construct the unit in accordance with the conditions contained in the PBR rule for that particular unit.  There will be no actual paper construction permit issued by the IEPA.  In order to operate the unit, the owner or operator will need to submit an application for a minor modification to its CAAPP permit and can then operate the unit under the terms of its CAAPP permit.  The IEPA anticipates that a notice of intent and a minor modification application could be submitted at the same time.

There are a few caveats. The proposed emissions unit must be located at a CAAPP source with a CAAPP permit.  The emissions unit cannot be subject to any pre-construction permitting requirements for new source review (NSR) or prevention of significant deterioration (PSD), and cannot be part of a larger project that would otherwise require a construction permit. The notice of intent still contains much of the same general information that would be included in a construction permit application and the owner or operator of the unit is still subject to the same permitting fees that would apply to a person obtaining a construction permit.

The IEPA also proposed to the Board the first PBR, of likely many to come. The first PBR would allow the construction of gas-fired boilers with a heat input capacity of no more than 100 mmBtu/hr at a CAAPP source following submittal of a notice of intent.  According to the IEPA, this type of unit is appropriate for a PBR because it is a common unit type, with relatively consistent emission characteristics.  The IEPA estimates that it typically processes an average of 8-10 construction permit applications for these types of units per year.  We would expect similar types of units to be subject to future PBRs.

The PBR regulations are authorized by Section 39.12 of the Illinois Environmental Protection Act, which was adopted in 2011. The concept of a PBR is common in other states and is a recognition of the limited resources of the environmental agencies. The PBR will allow the IEPA to direct its resources towards permitting more complex emissions sources.  There are also potentially significant benefits to industry, in that an owner or operator can construct emissions units sooner and with fewer delays due to permitting issues.  The benefits to industry will ultimately depend, however, on how many PBRs are eventually adopted.

The Pollution Control Board is holding its second public hearing on the proposed PBR rules in Chicago on Wednesday, November 16th at 1:00 p.m.