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.

Nine trade associations, including the American Chemistry Council, the American Petroleum Institute, and the American Forest & Paper Association, have filed a Petition for Review challenging the EPA’s Hazardous Waste Generator Improvements Rule.  The rule was developed by the Obama Administration and was not finalized until after the election, on November 28, 2016.  It is not scheduled to become effective anywhere in the country until May 30, 2017, at the earliest.

The primary purpose of the rule was to reorganize existing regulations applicable to hazardous waste generators to make them more user-friendly.  The rule also clarifies ambiguities in the existing regulations.  It will, however, have significant impacts on some hazardous waste generators.  For more information on substance of the Hazardous Waste Generator Improvements Rule, see our earlier post here.

The Petition for Review does not state which portions of the rule the associations seek to eliminate, nor does it articulate the substantive basis for their challenge. The petitioners did, however, submit comments on the proposed rule, which shed light on which requirements they find most concerning and the arguments they are likely to make before the Court.  In those comments, they listed as the most objectionable part of the rule EPA’s position that any violation of a condition for exemption subjects the generator to all of the applicable rules for non-exempt facilities.  As a result, a generator that runs afoul of a condition for exemption could as a result be subject to penalties for not complying with dozens of requirements that apply to the next higher level of generator, or even those that apply only to treatment, storage and disposal facilities.

The petitioners are also likely to focus their challenge on the portion of the rule that for the first time formally incorporates the requirement that hazardous waste determinations be made at the point of generation, before any dilution, mixing or other alteration of the waste occurs.

We will be following this petition and providing updates on Environmental Law Next as the challenge progresses.

On February 16th, President Trump signed a bill repealing the so-called stream protection rule, which was designed to prohibit dumping of debris from mountaintop removal mining into valleys and streams below the mining activity. The rule was promulgated by the Office of Surface Mining Reclamation and Enforcement (OSMRE) and went into effect on January 19th, the day before President Trump took office. In early February, the House and Senate passed the bill, using a repeal mechanism in the Congressional Review Act (CRE). The CRE was passed under Speaker Gingrich during the Clinton Administration and had been used only once before Trump became president.

The stream-protection rule was supported by environmentalists and opposed by the mining industry. Environmentalists have few options at this time. They could seek to beef up stream protection in the states, but mining states, where enforcement would have the most effect, are not likely to support such a measure. Or they could challenge the CRE in court, but the courts would be expected to give deference to the CRE, particularly because Congress delegates authority to administrative agencies to promulgate regulations and presumably has the authority to repeal them.

Environmentalists will probably have to wait until there is a democrat in the White House, but even then, the CRE prohibits agencies from passing regulations that are “substantially the same” as the regulations repealed under the CRE. Therefore, any future stream-protection regulations from the OSMRE would likely encounter a legal challenge on the basis of substantial similarity.

At the end of the day, the best hope for environmentalists would be a Democratic Congress that would impose stream protection measures directly by statute.

The EPA announced today that it is delaying the effective date of all regulations that have been published in the Federal Register but are not yet effective.  There are 30 such regulations, all of which are now scheduled to become effective on March 21, 2017.  The action was taken to comply with the White House’s “Regulatory Freeze Pending Review” memorandum, which was issued to the heads of all executive departments on the day President Trump was inaugurated.

The 60 day period “is necessary to give Agency officials the opportunity for further review and consideration of new regulations,” according to the rule.

The Agency’s action was taken without public comment pursuant to the good cause exceptions to the Administrative Procedures Act.  5 U.S.C. §553(b)(B) allows the administration to forgo regular notice and comment procedures when they are “impracticable, unnecessary, or contrary to the public interest.”

The rule adding a Subsurface Intrusion (SsI) component to the CERCLA Hazard Ranking System (HRS), which we wrote on two weeks ago, is among those affected by this action.  It was set to become effective on February 8, 2017.

The Agency specifically left open the possibility of delaying implementation of some affected regulations beyond March 21, 2017.

On January 9, 2017, EPA issued a final rule adding subsurface intrusion (SsI) as a component to the Hazard Ranking System (HRS), which is the mechanism that is used for determining the eligibility of sites for CERCLA’s National Priorities List (NPL).  The rule allows the threat of subterranean vapor migration into regularly occupied structures to be considered when deciding if the risk posed by a particular site is great enough to warrant listing.

Previously, the only exposure pathways that EPA and state and tribal organizations that assess sites for inclusion on the NPL were permitted to take into account were ground water migration, surface water migration, air migration and soil exposure. SsI is being folded into the existing soil exposure pathway, which is being restyled as the Soil Exposure and Subsurface Intrusion pathway.

The addition of SsI to the HRS at this time was driven by the development in technologies that allow SsI risks to be quantifiably and comprehensively measured in an efficient matter. EPA has long been aware of the health risks of SsI but could not justify considering it as part of the HRS, which requires the availability of data that can be used to objectively compare thousands of disparate sites.

The rule could result in an increase in the number of sites being listed on the NPL. Sites with an HRS score of 28.50 are eligible and that number will not change.  Under the new rule, however, potential SsI that would in the past have been ignored can add points to a site’s HRS score and there are no corresponding reductions elsewhere.  EPA expects that in practice, however, it will result in a shift in the makeup of sites on the NPL without causing more listings during any particular interval.

The rule will not affect sites that have already been evaluated for addition to the NPL. Sites that are already on, or proposed to be put on, the NPL have already been found to pose enough risk through other exposure pathways to warrant listing or proposal for listing.  Sites that were dropped from the listing process at some earlier stage of evaluation will not be reevaluated.

Since the beginning of the fracking boom, the potential impact of fracking operations upon groundwater has been a hotly contested area.   The most recent addition to the public debate is a new EPA report, entitled “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States”. The report sets forth the results of EPA’s latest investigation on this subject, which relied on independent research as well as published materials.

The agency concludes that fracking can affect drinking water resources under some circumstances, with impacts ranging in severity from temporary changes in water quality to contamination so severe that it renders water from private wells undrinkable. But the report also concluded that there are too many gaps and uncertainties in the available data to determine the frequency with which Americans’ drinking water is impacted by fracking operations.  Similarly, EPA could not fully characterize the severity of the impacts of fracking on drinking water nationwide.

Unsurprisingly, the report found that among the factors and activities that make impacts likely to be more severe or frequent are (1) withdrawals of water for fracking in areas of declining groundwater resources; (2) spills of hydraulic fracturing fluids; (3) wells with inadequate mechanical integrity; (4) injection of fracking fluids directly into groundwater; (5) discharge of inadequately treated fracking fluid wastewater; and (6) disposal of fracking fluid wastewater in unlined pits.

This relatively inconclusive report is receiving criticism from fracking supporters for failing to more forcefully endorse the safety of the practice.  They are highlighting the statement included in the draft version of the report, but removed from the final one, that EPA “did not find evidence that [fracking related activities] have led to widespread, systematic impacts on drinking water resources in the United States.”

The report puts a spotlight on an interesting choice facing the Trump administration, which has been clear about its desire to promote domestic oil and gas production. At Environmental Law Next, we will be watching to see whether incoming EPA Administrator Scott Pruitt pursues further studies with the aim of providing fracking with the government’s imprimatur of safety, or if he decides to just keep his agency away from the debate.

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.

Last week the Environmental Law and Policy Center, (ELPC) a Midwest-focused public interest environmental legal advocacy organization, held a post-election briefing outlining its plan for action during the Trump presidency.   Featuring prominently in the presentation was the launch of ELPC’s High Impact Environmental Litigation Program, or HELP.   The organization envisions a platoon of pro-bono attorneys bringing civil suits against polluters to make up for what it expects will be a reduction in the amount of federal environmental enforcement.

ELPC will likely not be alone among environmental non-profits in marshaling resources for citizen suits. In Environmental Law Next’s take on the likely implications of the election, we predicted that there will be a drop in the amount of EPA enforcement actions and a rise in private litigation in response.  Most federal environmental statutes allow anyone to bring a suit for injunctive relief to address ongoing violations, and even for civil penalties, if the government forgoes its right to act as the plaintiff.

What does this mean for the regulated community? No matter the resources organizations like ELPC can muster for this kind of litigation, it cannot fully assume the place of EPA and other federal enforcement agencies.  Citizen suit provisions give private organizations standing, but not many of the other legal rights that make an efficient, comprehensive enforcement regime possible.  The ability to conduct inspections on private property, for example, is central to EPA’s ability to identify violations and gather evidence.

Nevertheless, a citizen suit can be big problem for a company that finds itself defending one. ELPC is not hiding its intentions with this program, stating its hopes of bringing high impact lawsuits; it is not looking to give slaps on the wrist.  The cost of defending and resolving citizen suits brought by sophisticated non-profits could be as high if not higher than for government enforcement actions.

 

 

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.