Tag: “Clean Water Act”

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Don’t Dump Stuff in the River
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EPA to “Veto” Its Own Veto Authority under the Clean Water Act?

Don’t Dump Stuff in the River

By David L. Rieser

So, you are managing a major construction site in downtown Chicago. It’s been raining and you have thousands of gallons of silty water which you need to get off site. You can: (a) store it in tanks and then truck it to a waste water treatment facility; (b) discharge it to the local sewer under proper sewer authority; or (c) pump it into the river in full view of thousands of commuters walking over the bridges from the local train stations.

Most of us would agree that (c) would be the least optimal choice, but an editor for the Chicago Tribune took a very graphic picture of a construction worker doing exactly that, holding a pipe spewing thousands of gallons of grey silty water into the river and creating an extremely obvious and damning plume. He posted it to Twitter where it was seen by employees of the Illinois EPA and the Illinois Attorney General’s Office, who promptly sued the construction companies and the site owner for violation of federal and state clean water laws.

While this will no doubt create headaches for the defendants, this is, as they say, a teachable moment. First, construction companies must have a plan for managing stormwater. There is a General Permit issued by EPA under the Clean Water Act for construction activity, which lays out a number of requirements and best practices. There have been a number of cases brought against companies for violating this permit, generally for obvious issues, which could have been avoided with better management and focus. The conditions of these permits are available, and there are any number of environmental professionals who would be glad to work with construction companies to make sure these issues are addressed.

Second, even if there is a plan, it is management’s responsibility to train and work with the employees to make sure it’s implemented. It’s easy to look at this picture and blame the guy with the hose, but he had supervisors who either directed him or didn’t give him enough direction, other supervisors on site who weren’t paying attention to what he was doing, and still other supervisors who didn’t sufficiently stress that not dumping stuff in the river was as important as any other job on site.

Third, whatever the above steps might cost, it will be cheaper than dealing with this lawsuit. Fines under the Illinois Environmental Protection Act can run up to $10,000 per day, per violation. The actual amount of Illinois fines can fluctuate greatly, but they have generally been going up, and I doubt that Illinois will be talked into giving a slap on the wrist for this one. Had the federal government brought this action, the defendants would be looking at a minimum of $37,500 per day, per violation. In some particularly ugly circumstances, intentionally dumping stuff in the river can lead to criminal penalties, including jail.

So the bottom line is: Don’t do this. Plan for managing stormwater, train your employees and subs to implement the requirements, and supervise the site to make sure it is being done right.

EPA to “Veto” Its Own Veto Authority under the Clean Water Act?

By Ankur K. Tohan, Cliff L. Rothenstein, Endre M. Szalay, and Tad J. Macfarlan

On June 26, 2018, in one of his final acts as Administrator of the U. S. Environmental Protection Agency (“EPA”), Scott Pruitt issued a memorandum [1] that has set in motion a process to amend the regulations that govern the agency’s exercise of its “veto” authority under Section 404(c) of the Clean Water Act. [2] The memo directs EPA staff to prepare a proposal, within six months, that would potentially curtail EPA’s authority to effectively bar development projects that require a Section 404 dredge-and-fill permit from the U.S. Army Corps of Engineers.

As background, Section 404 of the Clean Water Act authorizes the Corps (and state agencies with delegated permitting authority) to issue permits authorizing the discharge of dredged or fill material into regulated waters at “specified disposal sites.” [3] However, the statute provides EPA the authority to “prohibit” or “withdrawal” the specification of any area as a disposal site when it determines that a proposed discharge will have an unacceptable adverse effect on water supplies, fisheries, wildlife, or recreational areas. [4] This is commonly known as EPA’s “veto” authority because the EPA can effectively veto a project that would otherwise be authorized under Clean Water Act permits issued by the Corps by prohibiting construction in areas for which there is no reasonably available alternative disposal site. EPA currently administers its veto authority through regulations that were last amended nearly four decades ago, in 1979. [5] To date, EPA has used its final veto authority only 13 times. [6]

The new memo grows out of concerns surrounding EPA’s prior use of its veto authority before a Section 404 permit application had been filed—i.e., a “preemptive” veto—or after a permit had already been issued—i.e., a “retroactive” veto—rather than in the midst of the permitting process. [7] Recent examples include EPA’s proposed preemptive veto of a high-profile copper and gold mining project near Bristol Bay, Alaska in 2014 (which remains pending), [8] and its 2011 retroactive veto of a coal mining project in Logan County, West Virginia. [9] Both of these cases spawned substantial litigation [10] and caused many observers (including former Administrator Pruitt) to question whether in the future “the mere potential of the EPA’s use of its section 404(c) authority before or after the permitting process could influence investment decisions and chill economic growth by short-circuiting the permitting process.” [11]

In response to these concerns, former Administrator Pruitt’s Memo directs EPA staff to prepare and provide to the White House Office of Management and Budget a proposal within six months (before the end of 2018) that would consider and seek public comment on the following changes:

  • Eliminating EPA’s authority to veto a project before a permit application has been filed.
  • Eliminating EPA’s authority to veto a project after a Section 404 permit has been issued.
  • Requiring EPA regional administrators to obtain approval from EPA headquarters before initiating the Section 404(c) veto process.
  • Requiring the completion of environmental review under the National Environmental Policy Act before preparing and publishing a proposed veto determination.
  • Requiring EPA to publish and seek public comment on final veto determinations before those determinations take effect.

While former Administrator Pruitt is no longer in office following his July 5 resignation, all indications are that the new Acting Administrator, Andrew Wheeler, will forge ahead with the rulemaking process initiated by his predecessor. Administrator Wheeler has publicly expressed his commitment to the regulatory agenda pursued by Pruitt prior to his departure and he has strong ties to the mining industries which, of all industries, were most negatively impacted by EPA’s application of the agency’s veto power under the Obama administration.

The coming weeks should serve as a valuable window into whether Administrator Wheeler will indeed move forward with a new 404(c) rulemaking. In a letter dated July 19, Senator Tom Carper (D-Del.) and Representative Peter DeFazio (D-Ore.) urged Wheeler to “immediately and publicly revoke” Pruitt’s memorandum. [12] The letter requests that by August 15, 2018, Administrator Wheeler respond to several 404(c)-related questions, including his “view on the proper exercise of EPA’s section 404(c) authority, and how this view is consistent with the Congressional history and judicious use of this authority by your agency in the past.” [13]

Assuming Administrator Wheeler stays the course set by his predecessor, the upcoming rulemaking process will provide a critical opportunity for EPA leadership and the regulated community to shape the Clean Water Act regulatory landscape for years to come. Persons and industries with interests tied to high-profile, capital intensive development projects—such as oil and gas, mining, and large scale water supply/impoundment projects—should give particular consideration to participation in the rulemaking process, as it is these types of ventures that are most likely to be negatively impacted by a surprise veto under EPA’s current regulatory regime.

The anticipated rulemaking limiting EPA’s Clean Water Act veto authority is already generating considerable controversy, so interested stakeholders should consider weighing in with EPA even before any proposed rule is released. K&L Gates has a team of lawyers and policy professionals in Washington, D.C. and beyond that is positioned to assist with such efforts.

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