Ear To The Ground

California's proposed septic tank rules hit another wall of protest, again

AB 885, enacted in 2000 [http://www.leginfo.ca.gov/pub/99-00/bill/asm/ab_0851-0900/ab_885_bill_20000927_chaptered.html], mandated that by Jan. 1, 2004, the California State Water Resources Control Board adopt statewide standards for septic tanks; the SRWCB is the parent agency of the Regional Water Quality Control Boards.  The protests and objections to the three earlier drafts have delayed implementation of this legislative mandate.  In November, 2008, the SWRCB tried again.  The November version would require septic tank owners to have their tanks inspected once every five years (cost estimate $325); if there are onsite domestic wells, these would have to be sampled for specified constituents every five years and the results provided to the SWRCB (estimated cost also $325).  If an existing septic tank is located within 600 feet of a surface body formally designated as “impaired”, and the local RWQCB has determined that septic tanks are contributing to the impairment, then the owner must have an assessment made if his/her tank is contributing to that impairment.  If so, then a supplemental treatment system must be installed (cost estimate, $45,000).

 

It should come as no surprise, therefore, that the latest version was meant with a firestorm of protest.  The public workshops held throughout the State drew huge crowds of angry septic tank owners.  As a result, the SWRCB has decided not to adopt the rules in August 2009 or to make them effective January 2010.  The regulations are up for grabs, once again.

 

Two members of the California Assembly [California’s “lower” legislative house], who represent rural areas, have introduced AB 268 [http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0251-0300/ab_268_bill_20090211_introduced.html].  The bill would repeal AB 885.  The bill has not yet been assigned to a Committee for consideration.

 

Stay tuned.

Contrary to popular belief, the sea level increases from various GHG scenarios will not result in a uniform increase in sea levels

One of the common misunderstandings about the impact of various GHG-impact scenarios is the failure to realize that the sea level increases will not be uniform.  Part of this is the result of the media talking constantly about "average" increases.  However, as an average, it is inaccurate when one asks "what will happen in this particular location?".  There are various geologic and gravitational effects that need to be taken into account.  For example, as noted by the Cousteau Society, if the West Antarctic ice sheet goes, which everyone agrees would be horrible, then the average sea level rise would be 5 meters (~16 feet), but the increase around most of North American would be 6.3 meters (~20.7 feet).  See http://www.cousteau.org/news/sea-level.  An image of the distribution of sea level changes worldwide from this event can be found at http://www.sciencenews.org/view/download/id/40620/name/Sea_level_rise_not_uniform.

EPA orders review of 150 to 200 applications for new or expanded surface coal mines, including many mountaintop removal operations

Yesterday's blog noted that EPA had filed objections to two mountaintop coal mining projects, but denied that it was reviewing nearly 200 pending mountaintop coal mining projects.  Today, the Associated Press is reporting that "EPA administrator Lisa Jackson directed the agency staff on Tuesday to review 150 to 200 applications for new or expanded surface coal mines, many mountaintop removal operations, pending before the federal government."  http://www.google.com/hostednews/ap/article/ALeqM5iNvAPXr-Xk5Ea7pzDT6hXfdB1xowD9754LC80.  So much for Agency denials. 

The use of chloramines in water treatment to reduce disinfection byproducts may inadvertently result in lead being released into the drinking water

About seven-and-a-half years ago, the District of Columbia’s water authority switched from chlorination to an alternative water-disinfection technology: chloramination. The goal had been to reduce the potentially carcinogenic byproducts of chlorination that developed in drinking water; the substitution worked.  However, an unintended consequence of this improved disinfection technique was the sudden release of copious amounts of lead into the drinking water that serves the nation’s capital.  The result was that those who drank the District’s water were dosed daily with high levels of lead.  This, of course, had a major adverse affect on children; the incidence of elevated blood lead abruptly increased by 9.6 times versus the first half of 2001.  Information on this scandal and the attempt to cover it up can be found at http://www.washingtonpost.com/wp-dyn/content/article/2009/02/12/AR2009021204081.html.  The underlying science of the impact of the use of chloramines and the release of lead in the water system can be found at http://pubs.acs.org/doi/abs/10.1021/es802789w.

Is public nuisance becoming a more relevant tool for environmental enforcement?

Public nuisance is one of the oldest equitable actions, dating back nearly 900 years.  In California it has recently been used to seek the removal of lead-based paint [see County of Santa Clara et al v. Superior Court, 161 Cal. App. 4th 1140 (2008); note the case has been depublished since review was granted by the California Supreme Court] and to seek to regulate emissions of GHG's from automobiles [California v. GMC, 2007 U.S. Dist. LEXIS 68547 (N.D. CA. 2007); motion to dismiss granted].  A recent review by Trent Taylor of a public nuisance case in North Carolina, in which the State used the tool to seek control of emissions from three coal-fired power plants, provides an interesting review of this equitable action.  See http://www.mcguirewoods.com/news-resources/publications/North%20Carolina%20v%20TVA.pdf.

It is important to bear in mind that the nuisance law of each State has some minor and some major differences one from the other.  As such, what may work in a particular factual setting in one State may not work in another.  However, it is always useful for plaintiffs to keep this option in mind when pursuing a case that might otherwise fall within the citizen-suit provisions of the CAA, CWA, and RCRA.  In California, defendants need to keep in mind that there is a statutory defense to some public nuisance actions.  Under Section 3482 of the California Civil Code, nothing done pursuant to a statute is deemed a nuisance ("Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.").  However, case law has determined that the statute is to be construed narrowly.  As such, while emissions that are lawful may not be subject to litigation, it is likely that emissions not in compliance with permits would be.  See, for example, Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116 (1971).

Concern about mountaintop mining appears to be moving up on the D.C. agenda

Mountaintop mining [see http://www.epa.gov/Region3/mtntop/], as noted in prior posts, has been quite controversial because of its various environmental impacts.  However, as noted in a 2/26/09 post, the Fourth Circuit recently upheld various permits for a mountaintop mining project; as noted therein, one of the key bases for the decision was a partially revoked EPA regulation that had not been updated since.  If the regulation were simply reinstated to its former 1980's form, then the basis for the Fourth Circuit opinion would disappear, and certain types of mountaintop mining projects would be required to obtain CWA 404 permits.

EPA in correspondence recently expressed concern about two proposed permits for projects in West Virginia and Kentucky; the National Mining Association asserted that the two letters in essence put on hold nearly two hundred pending mountaintop coal mining permits, a charge that EPA has denied.  See http://www.nytimes.com/2009/03/25/science/earth/25mining.html?_r=1&scp=1&sq=mountaintop%20mining&st=cse.

One sign of the spreading concern about such projects was the announcement in December 2008 by Bank of America that it was phasing out its "financing of companies whose predominant method of extracting coal is through mountain top removal."  See http://greeninc.blogs.nytimes.com/2008/12/04/bank-of-america-to-stop-financing-mountain-top-mining/?scp=2&sq=mountaintop%20mining&st=cse.

Also recently Representative Frank Pallone (D., N.J.) introduced H.R. 1310, which currently has 122 co-sponsors.  The very short bill amends 33 U.S.C. Section 1362 in a manner that would appear to make impossible any mountaintop mining project that causes spoils or removed soil to be placed in streams or rivers.  A copy of the legislation can be found at http://thomas.loc.gov/cgi-bin/query/D?c111:1:./temp/~c111PsBj4Y::.

EPA takes initial key step toward labeling CO2 as "pollutant" under CAA, which would allow the CAA to be used as part of a GHG control program

As noted in prior posts, to regulate CO2 under the CAA, EPA needs to find that CO2 is a danger to public health and welfare.  According to media reports, EPA has sent a draft report to OMB in which EPA concludes that CO2 in a danger to public health and welfare; EPA's public position is that the draft is an internal, deliberative document and "no further comment".  See  http://www.nytimes.com/gwire/2009/03/10/10greenwire-epa-document-shows-endangerment-finding-on-fas-10053.html.   A copy of the draft report can be found at http://www.eenews.net/public/25/10053/features/documents/2009/03/10/document_gw_01.pdf.

The interest of the business community in GHG regulation is shown by an analysis presented last month by the Center for Public Integrity; their report showed that by the end of 2008 more than 770 companies and interest groups had hired about 2,340 lobbyists to influence federal policy on climate change.  See http://www.publicintegrity.org/investigations/climate_change/.

One can reasonable anticipate a major legislative war over the issue of GHG regulation.  Although there has been much public discussion about a cap-and-trade program (and the revenue it would generate to help fund various federal programs), many economists and environmental justice organizations have argued for a carbon tax in lieu thereof for a variety of reasons noted in prior posts.

EPA taking a look at implementation of the 8-hour ozone standard

The wonderful mess created by EPA when, in 2005, it "deleted" the one-hour ozone CAA standard and "replaced" it with the 8-hour standard has been noted in prior posts.  [For information on the 8-hour standard, see http://www.epa.gov/air/ozonepollution/standards.html.]  As part of that original activity, the Bush Administration sought to eliminate the anti-backsliding requirement, which was struck down in South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) [the Court held, among other things, that 42 U.S.C. §7511d(a)'s backsliding penalties, designed to constrain ozone pollution, were controls that 42 U.S.C. §7502(e) required to be retained].

EPA has now held a public hearing on the 8-hour rule, and will take further written comments through April 1.  Concern had been raised by the Ohio EPA regarding the technical and legal foundation of the notice.  Questions were also raised by local officials that EPA's use of 2001 to 2003 data for making classification decisions made little sense, and would not provide enough time for nonattainment areas to draft plans to bring themselves into compliance by the proposed rule's June, 2010 deadline.  [For classification of areas by attainment, see http://www.epa.gov/ozonedesignations/.]  The 8-hour rule at 40 C.F.R. Section 51 established two rules for classifying nonattainment areas and establishing attainment deadlines.  For areas that have attained the so-called former one-hour rule, but not the 8-hour standard, the areas are classified as "basic nonattainment"; requirements for these areas are set in CAA Section 181, Subpart 1 (which gives EPA broad discretion in establishing attainment rules).  For those areas that have not obtained the one-hour rule, the standards are set by Subpart 2, which sets out a chart of attainment deadlines.  See 69 Fed. Reg. 23,951.

Until States meet the 8-hour rule, they are required to meet the former, allegedly revoked 1-hour rule. 

U.S. changes position and will support treaty to limit releases of mercury

The State Department has announced a policy change; the U.S. will now support a treaty to limit the discharges of mercury.  [See http://www.worldwatch.org/node/6024.]  It was noted that President Obama, while a Senator, had strongly supported the Mercury Export Ban Act (P.L. No. 110-414) to ban export of elemental mercury from the U.S. beginning in 2013.  To date, approximately 140+ countries support the treaty concept.  Only India and the PRC support a purely voluntary approach, which was the former U.S. position.  Media reports note that the treaty is likely to include guidelines related to mercury mining, reduction of mercury stockpiles, and reducing demand for products containing mercury (e.g., florescent lamps, electrical switches, lightening creams, thermometers, and chlor-alkali batteries).  Other elements of the treaty will probably include a prohibition on the construction of new production facilities, reduction of mercury emissions into the atmosphere, and the clean-up of contaminated sites.  [See http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=562&ArticleID=6090&l=en.]

It is believed that approximately 6,000 tons of mercury annually enters the environment.  Approximately 1/3 of that is from coal-fired power plants, artisanal mining, coal fires in homes, waste incineration, and deforestation.  [See http://www.usgs.gov/themes/factsheet/146-00/.] 

Mississippi District Court gives a generous interpretation to the CWA notice requirement

Hancock County Development, LLC (“HCD”) is a private Alabama corporation, which owns property, including wetlands, in and near Bay St. Louis, Mississippi.  In 2007, HCD was alleged to have begun clearing, dredging, and filling wetlands, and constructing ditches, berms, dams, canals, and several miles of road on approximately 700 acres of the property, including in wetlands.  A contractor associated with HCD was further alleged to have caused stormwater and fill material to be dumped into Bayou Maron.  Plaintiff Gulf Restoration Network sent a CWA notice, but did not append a copy of the notice to its complaint; thereafter plaintiff sued.  The complaint alleged that the aforenoted activities of HCD and contractor were done without the appropriate CWA permits.  Defendants filed a motion to dismiss on the grounds that the notice did not meet the requirements of the CWA and regulations.

 

In Gulf Restoration Network v. Hancock County Development, LLC, et al., 2009 U.S. Dist. LEXIS 11939 (S.D.Miss.: 2/3/09), the District Court addressed the issue.  As the Court noted, the notice must include "sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, . . . the location of the alleged violation, the date or dates of such violation. . . .".  40 C.F.R. §135.3(a).  “The purposes of the notice and sixty-day delay requirement are to allow the violator to bring itself into compliance and to allow the government agencies to enforce compliance.”  The complaint noted a range of years for the alleged improper activities of Defendants; citing several precedents, the Court noted that such was sufficient.  “Gulf Restoration's notice could have provided the exact month, day and year on which the violations began and continued to occur, but it was not required to do so. Instead, the notice provides that the violations began when Stennis Technology or a related company, and contractor Joshua Ladner or a related company, began construction on identifiable parcels of land, owned by Hancock. The notice even narrows down the date of this construction. This information is sufficiently specific to allow Hancock and the government agencies to identify the date or dates of the alleged violations and to do so with relative ease. It is specific enough to serve the statutory purpose of allowing the opportunity for self-compliance and agency enforcement.”

 

Defendants next argued that the complaint cited to a violation of CWA Section 301(a), which was not included in the notice.  The Court noted that the Complaint states, "The Defendants undertook these activities without obtaining the required permits under Sections 402 and 404 of the federal Clean Water Act, 33 U.S.C. §§ 1311(a), 1342, 1344." (Compl. at 1). Further, "Clean Water Act § 301(a) prohibits the 'discharge of any pollutant' into the navigable waters of the United States except where permitted under the Clean Water Act. 33 U.S.C. § 1311(a)."  Thus, the reference to Section 301 was not a new and different cause of action, and as such the reference to Section 301 in the complaint was not a problem.

 

Defendants also argued that the Complaint makes reference to additional parcels of land as sites of the violations, parcels which were not mentioned in the pre-suit notice.  The Court found the notice was sufficient, when taken as a whole.  “Reading the notice as a whole, the Court finds that notice was adequate. The above-quoted portion is not the only information provided in the notice which would permit identification of the location. Recall that the notice states that the violations are all associated with a specified construction project. Further, the notice also directs attention to certain violations ‘on properties adjacent to the parcels owned by Hancock.’ All of this information, combined with the two specified parcels and address, provide sufficient information to permit the recipients to identify all the locations of the alleged violations. The notice fulfills the dictates and purposes of the notice requirements...In the opinion of the Court, §1365(b)(1)(A) does not require the exact location of the violations. It requires only sufficient information which would permit the recipient to identify, among other things, the locations of the alleged violations.”

 

The District Court thus denied the motion.

 

In this case the Court took a common sense approach to the notice issue, especially since it is highly unlikely that the defendants did not understand what project and what activities were at issue.  That being said, the opinion is much more forgiving of shortcomings that many other courts would likely have found to be inadequate.  When providing a CWA notice, the more specificity that can be provided, the better.  Also, as the plaintiff did herein, it also pays to describe in broad generalities the overall scope of the project, location, time frame, and activities so that the defendant cannot claim it was blissfully ignorant of what the dispute was about.