Ear To The Ground

U.S. Supreme Court holds that Corps, not EPA, has primary authority to issue permit for the discharge of slurry from a mining operation into a nearby lake

As noted in a prior post, a mining company decided to reopen a gold mine in Alaska using a "froth flotation" technique to extract gold; it obtained permission from the Corps of Engineers to dispose of a rock and water slurry mixture by pumping it into a nearby lake.  Environmental groups challenged the decision, claiming that the decision to issue a permit under 33 U.S.C. Section 1344 violated the law because the mining company should have sought a permit from the EPA under 33 U.S.C. Section 1342, and because the proposed discharge violated performance standards the EPA promulgated under 33 U.S.C. Section 1316(b).  The District Court awarded summary judgment to the mining company and the State of Alaska, but the Ninth Circuit Court of Appeals reversed, holding that the proposed discharge would violate the EPA's performance standards and 33 U.S.C. Section 1316(e).

 

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 2009 U.S. LEXIS 4730 (6/22/09), the Supreme Court held:

 

1. The Corps, not the EPA, has authority to permit the slurry discharge.  By specifying that, "[e]xcept as provided in . . . [Section 1344]" the EPA "may . . . issue permit[s] for the discharge of any pollutant," Section 1342(a) forbids the EPA to issue permits for fill materials falling under the Corps' Section 1344 authority.  Even if there were ambiguity on this point, it is resolved by the EPA's own regulation providing that "[d]ischarges of . . . fill material . . . which are regulated under [Section 1344] do not require [Section 1342] permits."  40 CFR § 122.3. The agencies were thus seen to have interpreted this regulation to essentially restate Section 1342's text.  Because it is not "plainly erroneous or inconsistent with the regulation," the Court accepted the EPA's interpretation as correct.  Because Section 1344(e) empowers the Corps to "issue permits . . . for the discharge of . . . fill material," and the Agencies' joint regulation defines "fill material" to include "slurry . . . or similar mining-related materials" having the "effect of . . . [c]hanging the bottom elevation" of water, 40 CFR § 232.2, the slurry that Coeur Alaska was to discharge into the lake was interpreted by the Court as falling within the Corps' Section 1344 permitting authority, rather than the EPA's Section 1342 authority.

 

2. The Corps acted in accordance with law in issuing the slurry discharge permit to Coeur Alaska.  The plaintiff contended that because the EPA's performance standard forbids even minute solid waste discharges, 40 CFR § 440.104(b)(1), it also forbids Coeur Alaska's slurry discharge, 30% of which is solid waste, into the lake.  As such, plaintiff contended that the slurry discharge was "unlawful" under Section 1316(e), which prohibits "any owner . . . of any new source to operate such source in violation of any standard of performance applicable to such source."   In contrast, Coeur Alaska and the intervening Federal agencies asserted that Section 1344 granted the Corps authority to determine whether to issue a permit allowing the slurry discharge without regard to the EPA's new source performance standard or Section 1316(e)’s prohibition.  The Court found that the CWA was ambiguous on the question whether Section 1316 applied to discharges of fill material regulated under Section 1344.  On the one  hand, Section 1316 provides that a discharge that violates an EPA new source performance standard is "unlawful" -- without an exception for fill material.  On the other hand, Section 1344 grants the Corps blanket authority to permit the discharge of fill material -- without mentioning Section 1316.  The Court viewed this seeming void as indicating that Congress has not "directly spoken" to the "precise question" at issue within the meeting of the Chevron doctrine.  However, to make matters complex, the regulations, like the CWA, were not consistent one with the other.

 

Given this “ambiguity” and seeming inconsistency, the Court examined the Agencies’ subsequent interpretation of the applicable regulations, as provided in Auer v. Robbins, 519 U.S. 452 (1997).  The Court found guidance on this issue in EPA's internal "Regas Memorandum", which explains that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake.  The Court noted that although the Memorandum is not subject to sufficiently formal procedures to merit full Chevron deference, the Court defers to it because it is not "plainly erroneous or inconsistent with the regulations."  Plaintiff alleged that the Memorandum is not entitled to any deference because it has been contradicted by Agency statements; the Court was not convinced by the inconsistency; to the contrary, the Court found the Memorandum to be on point on the issue before the Court.  Further, Coeur Alaska cited to two instances in which the Corps issued a Section 1344 permit authorizing a mine to discharge solid waste as fill material. The Court found that these permits illustrated that the Agencies did not have a prior practice of applying EPA performance standards to discharges of mining wastes that qualify as fill material.

 

Further, under Section 1344(c), EPA had authority to veto the permit issued by the Corps.  However, it did not do so.

 

The Ninth Circuit opinion was reversed, and the case remanded.

Scientists discover potential route to two of four RNA nucleotides, helping to establish the scientific basis for RNA-world

As noted in prior posts, one of the debates that informs evolutionary theory is how life began.

Prior posts have noted the importance of RNA in current human physiology [see in particular the article noted in the 3/21/08 post].  However, before the dawn of DNA, life on the Earth may have been reflective of what has come to be called "RNA-world".

First, some historical perspective.  In April 1953 Watson & Crick discovered the structure of DNA, which set the stage for the discovery or RNA.  In May 1953 an experiment by Miller & Urey suggested that amino acids could arise "spontaneously" (from primordial chemicals plus lightning) on the young Earth [their method has been called into question since, but it set the stage for further experimentation].  In the 1960's, Brenner, Jacob, and Meselson showed that messenger RNA [see the earlier post noted above] carried information needed to make proteins.  In 1967, Woese and later Crick & Orgel independently proposed that RNA may have been the earliest repository of genetic information.  In 1986, Gilbert coined the phrase "RNA-world" for the early Earth environment in which RNA stored information and replicated itself [think: like many viruses today (e.g., HIV)].  In 1989, Cech & Altman shared the Nobel prize for finding that certain RNA molecules (called ribozymes) can cut and join each other, thus demonstrating the reality of replication. 

However, one of the major frustrations to proponents of RNA-world to date has been an inability to demonstrate how RNA molecules came to be.  A step in that direction may now have been taken.  RNA currently helps DNA make proteins, but since DNA holds the code to make proteins and proteins catalyze reactions that produce DNA, it seems reasonable to believe that proteins and DNA came about independently.

RNA molecules are polymers formed from repeating units (monomers) of three components (a sugar, a nitrogen-rich base), and a phosphate group.  RNA is made up of four types of the monomers, called nucleotides [see http://en.wikipedia.org/wiki/Nucleotides].  A recent study notes that by carefully combining two chemicals probably present in the "primordial soup", they created ribocytidine phosphate, one of the four RNA nucleotides.  Shining UV light on this nucleotide converted it to another RNA nucleotide.  Two down; two to go (still).  The problem, of course, is that it is unlikely that the steps taken by the researchers are reflective of what may have happened in the ancient world.  But, it does show that certain nucleotides can in fact be created from primordial chemicals.  The work will continue to seek to use conditions more reflective of ancient conditions.

The study can be found at http://www.nature.com/nature/journal/v459/n7244/full/nature08013.html.

In the context of the battle over water transfers in the Everglades, 11th Circuit finds that the unitary waters theory of CWA pollutant is one of two reasonable interpretations of the CWA, and thus upholds EPA's regulation

Prior posts have noted the ongoing battle over the transfer of water within the various canals and lakes around and in the Florida Everglades; the key legal question has been whether or not a CWA permit is required for such transfers because it is a transfer of a pollutant from one navigable body of water to another.  If it is a pollutant within the meaning of 33 U.S.C. § 1362(12), then a NPDES permit is required.  33 U.S.C. §§ 1311(a) & 1342(a).  As noted in prior posts, there has been an ongoing disagreement between the 11th Circuit and the Florida District Court over this issue.  In the latest incarnation, the 11th Circuit prevailed (no surprise) due to a change in the underlying EPA regulations.

 

In Friends of the Everglades et al v. S. Florida Water Management District et al, 2009 U.S. App. LEXIS 12341 (11th Cir.: 6/4/09), the Water Management District argued for a "unitary waters" theory (to wit, that moving existing pollutants from one navigable water to another was not an "addition to navigable waters" of that pollutant).  In the course of this ongoing litigation, the EPA formally adopted that theory in regulation [prior attempts by EPA to assert the theory in the form of written correspondence was held by every Circuit that reviewed it as not being entitled to Chevron deference].

 

The Court noted that in its view there were two reasonable ways to read the § 1362(12) language "any addition of any pollutant to navigable waters from any point source."  One was that it meant "any addition to any navigable waters;" the other was that it meant "any addition to navigable waters as a whole."  The Court found that the existence of two reasonable, competing interpretations was a statutory ambiguity that allowed the administering agency to pick one interpretation over the other, so long as that selected theory was memorialized in a regulation.  The Court thus found that because EPA's construction was one of the two interpretations that had been found reasonable, the Court could not say that the selection of that interpretation was arbitrary, capricious, or manifestly contrary to the statute.  As such, the unitary waters theory regulation had to be given effect, and an NPDES permit was not required for the transfer.

Ironically, atmospheric aerosols may boost carbon uptake by vegetation; thus, as air pollution is decreased, natural carbon sequestration may decrease also

Aerosols [http://en.wikipedia.org/wiki/Aerosols] are a suspension of fine particulate matter and liquid droplets in the atmosphere.  They derive from smoke, air pollution, volcanoes, and oceanic haze.  These particles scatter incoming solar radiation and thus prevent it from reaching the Earth's surface; the result is a temporary cooling of the climate.  However, in a surprising finding, researchers believe, based on modeling, that the scattering boosts the amount of carbon that vegetation takes in.  How?  Although aerosols decrease the total amount of light falling on a tree or bush, for example, the scattering actually diffuses solar radiation so that more leaves may be illuminated, particularly those below a tree's outer canopy.

The modeling suggests that from 1960 to 1980, Earth's land plants stored about 440 million metric tons of carbon each year (on average), but from 1980 to 1999 vegetation stored only 300 million metric tons annually.  Thus, ironically, if pollution control measures continue to increase atmospheric clarity, the boost in natural carbon sequestration provided by diffuse radiation will decrease.  The researchers estimate the effect from diffusion will near zero by 2100.  Thus, the amount of naturally sequestered carbon may decrease over the time frame when it is needed most.

The article can be found at http://www.nature.com/nature/journal/v458/n7241/abs/nature07949.html.

Fossil of another "transition animal" found

When discussions about evolution occur, one of the frequent criticisms is that there is often scant evidence showing the transition of an animal from one form to another.  Given the rarity of fossils, this is a clever argument, but often lacking in any real merit.  Now, one has been found that appears to show the transitional form from a walking, land-based mammal to pinnipeds (the group that includes seals, sea lions, and walruses).  The animal, Puijila darwini, had a long tail and otterlike body with both webbed feet and legs like a terrestrial animal.  However, it had a pinniped-like skull and a body that is a meter in length.  It is estimated that it lived 22 million years ago, and the skeleton suggests it was adept on both land and in the water. 

The study can be found at http://www.nature.com/nature/journal/v458/n7241/full/nature07985.html.  A picture of the skeleton can be found at http://paleonews.files.wordpress.com/2009/04/2009-04-23-puijila-darwini-1.jpg.

EPA claims number of open beach days holds steady for third year in a row

Prior posts have noted the controversy over the sampling and calculation of "open" beach days; this is an issue because of the unfortunately not infrequent spills from wastewater treatment plants and runoff from stormwater.

EPA has now issued its report for the 2008 swimming season in which it claims that the number of open days has "held steady" for the third straight year.  3,740 beaches (involving 714,070 beach days) were allegedly monitored in 2008.  There were a total of 5,400 notifications; 91% lasted a week or less.  60% of the notifications lasted only 1-2 days.  In total, notification actions were reported for 34,296 days; so beaches were under advisory about 5% of the time.

One cannot help but to believe, as noted in the prior post on the 2007 report, that the sampling and evaluative process still leaves much to be desired in terms of completeness or accuracy.

The report and information on the report can be found at http://www.epa.gov/waterscience/beaches/.  Note that some of the data from some States is still undergoing evaluation, which means the statistics are (to be kind) preliminary.

Standards for bottled water tightened by FDA

Prior posts have noted the controversy surrounding the purity of bottled water.  See, for example, http://www.nrdc.org/water/drinking/nbw.asp and http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/10/15/MNGV13H0L4.DTL.  Prior posts have also noted that some jurisdictions (e.g., SF) have stopped the purchase and use of bottled water out of cost and environmental concerns about plastic waste.  See http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/01/BAMS164JUC.DTL.  Another concern noted in prior posts is the presence of BPA (an endocrine disruptor) in liquids in plastic bottles.  See, for example, http://www.scientificamerican.com/article.cfm?id=plastic-not-fantastic-with-bisphenol-a.

FDA has now mandated that, starting in December, suppliers of bottled water must test source water for total coliform bacteria contamination.  74 Fed. Reg. 26,252.  If any coliform organisms are detected, then the bottler has to ascertain if they are E. coli, seen as an indication of fecal contamination.  Source water with E. coli is considered unsafe and may not be used.

Similarly, tougher standards are imposed on the quality of the finished water.  74 Fed. Reg. 25,651.  Finished water must currently be tested for total coliform.  The new rule requires assessing if E. coli is present; if so, then the water is considered "adulterated" by filth and may not be sold.

Consistent with the Small Business Regulatory Enforcement Fairness Act (PL 104-121), FDA has also issued a compliance guide related to the 2001 rule on allowable levels of and monitoring requirements for three residual disinfectants and four types of disinfection byproducts.

The final rules described above can be found at http://edocket.access.gpo.gov/2009/E9-12494.htm.

Northeastern U.S. sea level increase may exceed other regions if Greenland ice sheet melts

The Fourth Assessment Report (issued in 2007) by IPCC estimated that sea levels could rise 7-23" globally, depending on various impacts on glaciers and ice sheets around the world, as noted in prior posts.  Prior posts have also noted that the distribution of increases in sea level across the globe will not be uniform.

Researchers in March published a paper that noted that rising ocean temperatures could shift ocean currents in the northern Atlantic Ocean, causing sea levels to rise by as much as another 8" more than the global average.  See http://ams.allenpress.com/perlserv/?request=get-abstract&doi=10.1175%2F2008JCLI2511.1&ct=1.

In their latest paper, the researchers note that sea levels off the coastline of the Northeastern U.S. and Nova Scotia could rise more than other regions within the next century if the Greenland ice sheet melts at an accelerated rate.  Combined with the aforenoted change in ocean currents, the rise may be in the range of 12-20" more than the global average sea level rise by the year 2100 as ocean currents circulate water from the melting ice sheets.  See http://www.agu.org/pubs/crossref/2009/2009GL037998.shtml. 

Obama Administration supports legislation to "clarify" CWA jurisdiction

Prior posts have noted the narrowing of CWA jurisdiction due to the U.S. Supreme Court's Rapanos and SWANCC decisions.  Prior posts have also described legislation introduced in the House and in the Senate to make moot these decisions, and to note the broad scope of jurisdiction that existed under case law that existed well over a century ago.  The Obama Administration has now written to various committee chairs noting the Administration's support for restoring "the historic Clean Water Act protections over the nation's waters." 

The correspondence urged consideration of four principles: a) broadly protect the nation's waters; b) make the definition of covered water predictable and manageable; c) promote consistency between CWA and agricultural wetlands programs; and, d) recognize long-standing practices.

A copy of the correspondence can be found at http://www.martenlaw.com/news/pdfs/20090520-Letter-To-James-Oberstar.pdf.

Critics claim electronic waste legislation has loophole that allows nefarious conduct

HR 2595 was introduced in the House in May; its laudable objective is to prohibit the export of certain electronic waste (e.g., PC's, servers, monitors, TV's, printers, copiers, video game systems, and other products with circuit boards) to countries that are not members of the OECD or EU [plus Liechtenstein].  See http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2595:.  The concern is the health and environmental impact of a variety of so-called heavy metals, such as lead, cadmium, beryllium, and chromium, which can be dangerous if they are not handled properly.

Critics have focused on one term that provides an exception if the recycler states that the electronics are being shipped "for repair or refurbishment."  Concern is that dishonest recyclers could abuse the exception. 

The legislation is pending in the House Energy & Commerce Committee.