Ear To The Ground

Corps reissues permit to Coeur d'Alene Mine in Alaska

Prior posts have noted the battle over the 404 permit for the Coeur d'Alene mine in Alaska, including the U.S. Supreme Court's decision, reversing the 9th Circuit, in allowing the permit to be issued; in the most recent post on the controversy, it was noted that EPA recommended to the Corps that the permit be issued, but only with substantial constraints.

The Corps has now rejected the EPA recommendations and reissued the 404 permit.  Only two minor changes were made: (a) the construction deadline was extended to 7/31/14, and (b) the acreage that could be disturbed was reduced slightly.  See http://www.juneauempire.com/stories/081609/loc_482257817.shtml. 

Using the citizen-suit provisions of the CWA and RCRA, environmental group sues PG&E over alleged pentachlorophenol "discharges" from its power poles

Pentachlorophenol (PCP) is a preservative used to prevent deterioration.  The Ecological Rights Foundation (“ERF”) has filed a citizens-suit under the CWA and RCRA related to alleged discharges of PCP from PG&E power poles.  ERF estimates that there are over 1 million of the PCP treated poles in Northern California, and alleges that PCP contains various “dioxin-like” compounds that are highly toxic and bio-accumulate when discharged to waters and soil.  The lawsuit covers PG&E poles located in Alameda, Contra Costa, Marin, and San Francisco counties.  ERF has alleged that PCP leaks from the poles and is transported by rainwater into San Francisco Bay, which is listed as “impaired” for these dioxin compounds under the CWA.

 

In what will be a point of contention, I am sure, in the litigation, the lawsuit alleges that each individual pole is a “point source” under the CWA and thus PG&E is required to have a permit for the alleged discharges; since PG&E lacks such permits, ERF argues that each discharge from each pole each day amounts to a separate violation of the Act.

 

ERF also has sued under the citizen-suit provision of RCRA (42 U.S.C. § 6972(a)(1)(B) [PG&E is alleged to be a generator of a solid waste that presents “an imminent and substantial endangerment to the environment”].

 

If this lawsuit succeeds, it will certainly become a model for litigation across the country.  However, it should be noted that ERF has been able to leverage the impaired status of S.F. Bay in its CWA claims, geographical circumstances that obviously are not present everywhere.

 

The lawsuit is Ecological Rights Foundation v. Pacific Gas and Electric Company, Docket 09-03704 SBA (N.D. CA. 2009).  [I should note that I have represented PG&E in several environmental cases, but am not involved in this litigation.]

California's DTSC outlines protocols for testing lead content in plumbing materials

For many years, Proposition 65 plaintiffs and the California Attorney General filed a lot of cases against manufacturers of plumbing fixtures because (a) the lead contained in various components leached into the water passing through, and (b) as noted in prior posts, the lead standard under Prop. 65 is very, very strict (the concentration needed to show a violation of the lead standard as a reproductive toxicant was quite small).  Eventually, AB 1953 [http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_1951-2000/ab_1953_bill_20060930_chaptered.html] became law in 2006 and SB 1334 [http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_1301-1350/sb_1334_bill_20080929_chaptered.html] in 2008; both created a so-called "lead free" standard for plumbing materials effective 1/1/10.  ["Lead free" of course does not mean lead free.  Fixtures conveying drinking water were limited to 0.25% weighted average lead content.]

The Department of Toxic Substances Control is required to select up to 75 fixtures annually and test them for compliance.  DTSC has now issued a Fact Sheet outlining its test protocols.  See http://www.dtsc.ca.gov/PollutionPrevention/upload/lead-in-plumbing-testing-protocol.pdf.

California State Water Resources Control Board adopts new construction storm water permit, but makes a few changes

Prior posts have noted in detail the proposed new California construction stormwater permit.  At its September hearing, the SWRCB adopted the permit, but made a few changes:

 

*  The permit will not become effective until 7/1/10 (rather than 100 days after adoption).

 

*  Dischargers will not have to comply with numeric effluent limits if the site receives runoff from a forest fire or other natural disaster.

 

*  The SWRCB may reopen the permit if EPA adopts a final effluent limitation guideline for construction activities.  [Don’t hold your breath.]

To say that the permit is complex is a classic understatement.  Please review its terms and conditions carefully. 

The new permit and the supporting documentation can be found at http://www.waterboards.ca.gov/water_issues/programs/stormwater/constpermits.shtml.  A good place to start any review is with the “fact sheet” (which is a mere 49 pages):  http://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/constpermits/wqo_2009_0009_factsheet.pdf.

The 10th Circuit find that intervention will nearly always be permitted when the underlying lawsuit has the potential to impair the intervenor's legal or financial interests

A variety of parties often seek to intervene in “high profile” cases in order to argue for or promote their agenda on the issue; it is not uncommon for such petitions to be denied.  However, the rules are different when the intervenor has a financial or other direct stake in the results.

 

In WildEarth Guardians v. U.S. Forest Service, et al, 573 F.3d 992 (10th Cir. 2009), this general principle was demonstrated.  The Forest Service approved plans for venting methane gas from a coal mine.  The mine owner began constructing methane-drainage wells and mining the coal seam.  In a lawsuit, plaintiffs alleged that defendants had violated NEPA by, among other allegations, failing to analyze reasonable alternatives to methane venting.

 

The Court of Appeals noted that it follows a somewhat liberal line in allowing intervention.  The central concern in deciding whether intervention is proper is the practical effect of the litigation on the applicant for intervention.  The Court noted that although FRCP 24(a)(2) describes an intervention "of right," it is not a mechanical rule but requires courts to exercise judgment based on the specific circumstances of the case.  To satisfy the “impairment” element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied.  This burden is minimal, according to the Court.  If an absent party would be substantially affected in a practical sense by the determination made in an action, he/she/it should, as a general rule, be entitled to intervene.

 

The Court of Appeals therefore determined that the mine owner was entitled to intervene as of right under FRCP 24 because (1) the mine owner showed the potential for impairment of its interests since it had a direct economic stake in the subject of the litigation and a declaratory judgment in favor of the organization could have severe consequences for future mining, and (2) the mine owner established a possibility of inadequate representation since the government had multiple objectives and could well decide to embrace some of the environmental goals of the plaintiff.

California enacts legislation regarding sales of alternative energy by homeowners to utilities, access to clean water, use of GHG offsets, liability defenses for contamination, and lead wheel weights

Despite the budget crisis and much partisan hostility, California has enrolled this year some major environmental legislation which has not been reviewed previously.

Net Metering.  AB 920 (http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0901-0950/ab_920_bill_20090921_enrolled.html) allows residential customers generating power through wind and solar installations to sell any excess to the local utility subject to an overall cap of 2.5% of the utility's total power.  The bill awaits the Governor's signature or veto. 

Clean Water.  AB 1242 (http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1201-1250/ab_1242_bill_20090917_enrolled.html) has the effect of setting forth the preferences in the water code for domestic uses over irrigation and other uses.  It is however merely a policy statement that requires no action to expand infrastructure beyond programs already being implemented by various state agencies.  Agencies are to take steps to implement the policy as long as the steps taken do not adversely effect access to federal funds.  The bill awaits the Governor's signature or veto.

GHG Offsets.  AB 1404 (http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1401-1450/ab_1404_bill_20090921_enrolled.html) limits the use of offsets to 10% of a source's obligations under a cap-and-trade or other market mechanisms to comply with the State's AB 32 program (which has been reviewed in detail in prior postings).  The bill awaits the Governor's signature or veto.

Liability Defenses for Contamination.  SB 143 (http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0101-0150/sb_143_bill_20090904_enrolled.html) extends to 1/1/17 existing law which provides a defense against liability for contamination to bona fide purchasers, innocent landowners, and contiguous property owners.  Individuals with such a defense on 12/31/16 shall continue to have the defense after that date if they otherwise comply with applicable law.  The bill awaits the Governor's signature or veto.

Lead Wheel Weights.  Prior posts have noted State and Federal activities to address lead wheel weights.  SB 757 (http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0751-0800/sb_757_bill_20090910_enrolled.html) prohibits the manufacture, sale, or installation of lead wheel weights in California that contain more than 0.1% lead by weight.  The law also notes that the Department of Toxic Substances Control will continue to maintain jurisdiction over any substance used in lieu of lead in such weights under the current "Green Chemistry" law (Sections 25251 et seq. Health & Safety Code).  The bill awaits the Governor's signature or veto.

Florida District Court notes Corps can consider any applicable state, regional, or local land use classification, determinations, or policies in defining a project for 404 purposes, even if another Federal agency has a more constrained view of the project

In conjunction with an airport relocation project, the Airport Authority requested to fill hundreds of acres of wetlands.  The FAA issued an environmental impact statement (EIS), which, along with the authority's application, the Army Corps considered when deciding to issue a project permit under §404 of the Clean Water Act.  Plaintiff and Intervenor environmental groups objected to the approval of a 8,400-foot runway to accommodate international flights that the authority wanted, given that the FAA found that a 6,800-foot runway would accommodate the area's projected aviation needs through the year 2018.

 

In February 2008, plaintiffs filed a complaint and a motion for a temporary restraining order to suspend the issuance of the permit and halt the Airport construction.  The Court denied all preliminary emergency relief.  The plaintiffs subsequently narrowed some of their claims, and thereafter following cross-motions for summary judgment.  The legal issues presented to the Court were three: (1) whether the Corps abused its discretion or acted arbitrarily and capriciously in defining the project purpose; (2) whether the Corps abused its discretion or acted arbitrarily and capriciously in evaluating the project alternatives; and, (3) whether the Corps abused its discretion or acted arbitrarily and capriciously by not requiring the Authority to further minimize impacts to the site.

 

In Florida Clean Water Network, Inc. et al v. Grosskruger et al, 587 F. Supp. 2d 1236 (M.D.FL. 2008), the Court addressed the issues.  The Court found that (1) the Corps' definition of the overall purpose of the project, which embraced the 8,400-foot runway, did not flout the FAA's finding regarding the adequacy of a 6,800-foot runway, but fell within the FAA's limits of variance; (2) the Corps did not act arbitrarily in accepting the FAA's and Authority's conclusions that the longer runway would encourage area economic growth and meet future demand after the year 2018; and, (3) the Corps did not impermissibly allow local site-specific planning desires to override the Corps' obligation to protect wetlands.

 

Importantly, the Court noted that the Corps’ regulations require that it consider any applicable officially adopted state, regional, or local land use classifications, determinations, or policies when evaluating a proposed impact to wetlands.  33 C.F.R. § 336.1(c)(11)(ii).  Thus, the Corps was not constrained by the FAA’s findings.  Of similar import, the Court noted that the Authority had worked with the Corps and the Florida Department of Environmental Protection to take measures to reduce the footprint of the airport project, resulting in saving over one hundred acres of wetlands, including some of high quality.  Additionally, the permit required extensive mitigation to ameliorate the effects of impacts where further avoidance or minimization was not available.

 

Thus, the Court concluded that the Corps did not act arbitrarily or capriciously.

 

This case again demonstrates the difficulty of challenging a well documented administrative decision that relies on the Corps’ own regulations for support.  Absent being able to challenge the validity of the regulations by noting their inconsistency with statutory law, the plaintiffs will generally have a very difficult time indeed meeting the arbitrary and capricious decision-making standard.

Showerheads may pose a risk for those with compromised immune systems by harboring and aerosolization of bacterial biofilms

As noted in many prior posts, the world is full of microorganisms to which we humans are exposed constantly, and there is still a significant scientific debate regarding whether we need such exposures to prime the immune system and to keep it from getting out of control (e.g., overreacting and causing such diseases asthma).

 

However, a seemingly unexpected source has appeared, the plastic showerhead.  Researchers took samples of the biofilm [see http://en.wikipedia.org/wiki/Biofilm] that builds up inside showerheads from 45 sites in nine American cities and analyzed the genetic material which it contained.  Interestingly, some samples had high concentrations of a microbe known as Mycobacterium avium (which is related to the one that causes tuberculosis) which can cause respiratory illnesses.  This is found in tap water, but remains harmless unless turned into an aerosol and inhaled, precisely what happens when bacteria-ladened water is forced at high pressure through a showerhead.  As the tiny particles are inhaled, they get into the lungs and may start an infection.

 

Is this a cause for alarm?  Not for healthy people, the researchers note, but those with a compromised immune system or who are at risk of pulmonary diseases (e.g., the elderly) may want to take precautions.  Cleaning showerheads with bleach will not solve the problem since the microbes will simply return with a fresh flow of water.

 

The researchers suggest replacing plastic showerheads with metal ones.   They also suggest  letting the water flow for a bit to get rid of some of the build-up in the showerhead.  However, even those precautions would leave one exposed to the aerosols formed by the fresh flow of water.  Thus, the immune compromised may want to consider bathes as an alternative.

 

If I had one criticism of the study it was its apparent failure to sample the incoming water for its chlorine level.  A number of years ago in the “blue water” cases (in which I represented one of the defendants) it was shown that biofilms developed because of the lack of residual chlorine in the neighborhood water supply (the housing tract was at the end of the distribution system).  Since then EPA has upped the required chlorine level, but there are still a number of places in the U.S. where such biofilms have been found to develop.  Frequently the problem is that the chlorine degrades as it travels through the system over time; also the presence of substantial biological material in the water “uses up” the chlorine.  Rather than incurring the expense of remote chlorination stations, many water utilities have turned to using chloramines, which has a longer half-life.  The problem is that in old water systems chloramines has been found to scavenge lead from old solder and piping, resulting in very much increased lead exposures to children; chloramines have been also found to pit piping, resulting in leaks and causing structural damage to buildings.

 

Thus, this study highlights a serious problem with the fundamentals of providing a healthy water supply to the population, a problem that is not being adequately addressed.

 

Information on the study can be found at http://www.colorado.edu/news/r/50fe20a5a5376631bbad2024f89b02c0.html.

U.N. states that pollution accord will come into effect in October

The United Nations says an international accord requiring governments to publicly identify sites of environmental pollution will come into force on Oct. 8.

 

The U.N. Economic Commission for Europe, or UNECE, has noted that the Protocol on Pollutant Release and Transfer Registers covers 86 potentially hazardous substances.  UNECE has now announced that 36 countries have signed the protocol, which brings it into effect.

 

All signatories to date have been European though the Protocol is open to any government.

 

The EPA already has a register similar to that foreseen by the Register known as the Toxics Release Inventory Program.

 

More information on the Protocol can be found at http://www.unece.org/env/pp/prtr.htm.  Information on the Toxics Release Inventory Program can be found at http://www.epa.gov/TRI/.

Ninth Circuit notes inconsistent rulings by other Circuits in awarding attorney's fees in CWA cases, and holds that they can only be rarely denied to a prevailing party

In a prior post (5/29/08) regarding St. John's Organic Farm v. Gem County Mosquito Abatement Dist., 2007 U.S. Dist. LEXIS 63224 (D.ID: 2007), it was noted  that the District Court held that, because of the unique wording of the CWA attorney’s fees provision, the CWA did not recognize the catalyst theory for attorney’s fees.  The 9th Circuit has now reversed.

 

In St. John's Organic Farm v. Gem County Mosquito Abatement Dist., 2009 U.S. App. LEXIS 17568 (9th Cir. 2009) [note the original opinion was amended in an irrelevant manner], the Court held that the District Court erred in finding that plaintiffs were not "prevailing parties" for purposes of § 1365(d).  The settlement agreement between the parties met the three conditions necessary to make plaintiffs prevailing parties for attorney’s fees purposes because the terms of the agreement were judicially enforceable, the agreement effected a material alteration in the legal relationship between the parties, and plaintiffs received actual relief on the merits of their claim.

 

The Court of Appeals took the opportunity to articulate its standard for determining whether a fee award was "appropriate" under § 1365(d) so the District Court could apply the correct standard on remand.  The Court noted that the other Circuits have not agreed on a uniform standard for determining "appropriateness" for a prevailing plaintiff under 33 U.S.C. § 1365(d). The First Circuit has stated that District Courts have wide discretion to determine the appropriateness of fees under the Clean Water Act (CWA), but it has not articulated a standard to guide the exercise of this discretion. The Third Circuit was seen to have effectively read "appropriate" out of the statute, holding that the CWA places no restriction on the award other than that the party entitled to the award be prevailing or substantially prevailing.  The Fourth and Fifth Circuits have held that fees are appropriate whenever a prevailing party's suit has served the public interest or advanced the goals of the statute.  The Eleventh Circuit has held that good cause is needed to deny attorney's fees to a prevailing party.

 

The Ninth Circuit did not adopt any of these standards and instead helds that the "special circumstances" standard first elaborated by the U.S. Supreme Court in Newman v. Piggie Park Enterprises is the proper standard for determining whether an award of attorney's fees to a prevailing plaintiff is "appropriate" under § 1365(d).

 

The Court thus stated the following standard:  § 1365(d) attorney's fees could be denied to prevailing parties only where there were "special circumstances."  Such circumstances are seen to be narrow and rare.  Defendants' good faith belief that they were following the law did not qualify as a special circumstance.