Environmental Law Update

Volume 27 No. 2

Environmental Law Update Editor: Scott E. Hitch, Burr & Forman LLP, 171 17th Street, N.W., Suite 1100, Atlanta, GA 30363

Environmental Law Update provides information on developments in environmental law as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Doha Conference Concludes with New International Direction on Climate

The 18th session of the Conference of the Parties to the United Nations Framework Convention on Climate Change and the 8th session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol was held November 26 through December 8, 2012, in Doha, Qatar. The Doha Conference is the 18th annual UN climate conference and was focused in large part on continued negotiations for a successor agreement to the 1997 Kyoto Protocol, which first set binding obligations on industrial nations to reduce carbon emissions.

The Doha Conference had three primary outcomes:

  • The Kyoto Protocol was reauthorized for another eight years. But, because fewer countries signed on to the reauthorization, the Kyoto Protocol now only covers around 12% of global emissions.
  • Voluntary pollution-reduction commitments covering 80% of global emissions, which were first adopted in 2007, were ended.
  • Initial steps toward implementing the “Durban Platform for Enhanced Action” were made. The Durban Platform was agreed to in 2011 and establishes that a new treaty applicable to all parties (not just industrial nations) covering 100% of global emissions will be put into place by 2015.

EPA Issues More Stringent Soot Rule

On December 14, 2012, the U.S. Environmental Protection Agency (EPA) finalized a court-ordered update to national air quality standards for fine particle pollution (PM2.5), including soot, setting the annual health standard at 12 micrograms per cubic meter. The previous standard of 15 micrograms per cubic meter was set in 1997. EPA kept intact the existing daily standard for coarse particles (PM10), which includes dust from farms and other sources.

EPA estimates that only about 10 counties, out of the more than 3,000 counties in the United States, will need to consider any local actions to reduce fine particle pollution to meet the new standard by 2020, as required by the Clean Air Act.

Updates Expected to Phase I ESA Standard

The current industry standard for Phase I Environmental Site Assessments (ESA), American Society for Testing and Materials (ASTM) E1527-05, was designed to meet the EPA’s requirement for All Appropriate Inquiry (AAI) for environmental due diligence under CERCLA. In 2013 ASTM plans to release a revised standard, ASTM E1527-13, which will require approval by EPA as meeting the AAI requirement.

Several potential changes to the Standard could affect the way Phase I ESAs are conducted or written. The new Standard potentially may include a new category of Recognized Environmental Condition (REC): the Controlled Recognized Environmental Condition (CREC). CREC would apply to risk-based closures of contaminated sites. Many states have implemented risk-based closure initiatives under voluntary remediation or transaction-based “brownfield” cleanup protocols. Many of these initiatives include incentives for remediation including tax breaks and limitations of liability for purchasers and future owners of cleaned-up real property. If adopted, CREC would alter the presentation of findings and conclusions in the Phase I ESA Report, and it will be incumbent on environmental practitioners to understand environmental risks associated with risk-based closures.

Another potential change to the E1527 process is an explicit requirement for regulatory file reviews on adjacent properties. Currently such reviews are typically performed only when environmental consultants identify visible indicia of potential off site contamination sources.

Supreme Court Hears Oral Arguments in Clean Water Act Cases

The Supreme Court heard oral arguments on December 3, 2012, in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011), cert. granted sub nom. Decker v. Northwestern Environmental Defense Center, 133 S. Ct. 22 (2012) (consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center), just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a National Pollution Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads. See http://cfpub.epa.gov/npdes/stormwater/ forestroads.cfm.

EPA, in its statement on the new rule, says:

In [Brown], a citizen suit was filed alleging violations of the Clean Water Act (CWA) for discharging stormwater from ditches alongside two logging roads in state forests without a permit. The court held that because the stormwater runoff from the two roads in question is collected by and then discharged from a system of ditches, culverts, and channels, it is a point source discharge of industrial stormwater for which an NPDES permit is required. The EPA did not intend for logging roads to be regulated as industrial facilities. . . . The EPA believes that stormwater discharges from forest roads, including logging roads, should be evaluated under section 402(p)(6) of the CWA [the “Phase II” Stormwater Rule] because the section allows for a broad range of flexible approaches that are better suited to address the complexity of forest road ownership, management, and use. The EPA has added language to existing stormwater regulations to clarify that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under Standard Industrial Code (SIC) code 2411 that are “industrial” are: rock crushing, gravel washing, log sorting, and log storage.

The Supreme Court now must wrestle with how to handle the case in light of EPA’s clarifying regulation. The Court likely is weighing the options of (1) reversing the lower court’s decision on the ground that the lower court failed to apply EPA’s silvicultural rule, which exempts certain farming activities from CWA regulations (this approach is advocated by the logging industry), (2) dismissing the case as moot and vacating the Ninth Circuit’s opinion or remanding to the circuit court to address the mootness question (this approach is advocated by the Solicitor General), or (3) dismissing the petition for certiorari as being improvidently granted (this approach is advocated by the environmental group).

Probably neither party to the litigation will get what it wants. The Ninth Circuit win for the environmental group is not likely to be upheld because EPA clarified the underlying rule. The group may find it necessary to challenge the “clarifying” regulation on the ground that it is contrary to the CWA. The logging industry probably will not get a reversal on the merits. Because of the mootness potential, there is not likely to be a substantive decision at all. All of this means that the uncertainty surrounding the scope of CWA jurisdiction that has been problematic since the Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006) (regarding the definition of “jurisdictional waters”), will remain in place for now.

The EPA, for its part, seems to indicate that it will make good on its long-standing promise to regulate runoff from logging roads through a stormwater rule, instead of the NPDES industrial permitting regime. Back in 1999, EPA had issued its “Phase II” stormwater rule. Challenges by environmental groups were brought because EPA did not include logging road stormwater discharges under that rule. In Environmental Defense Center, Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), the Ninth Circuit directed EPA to consider regulating logging road stormwater discharges under the stormwater amendment, finding that the silvicultural rule related to NPDES permitting did not prevent EPA from regulating forest roads as stormwater discharges. Although EPA has not since then taken any action to include logging road stormwater under the “Phase II” rule, it is arguing before the Supreme Court and telegraphing in its statement clarifying the NPDES rule that it now intends to take that approach.

Looking Forward: Expected EPA Rulemaking for 2013

The EPA under the Obama Administration—primarily because of continued economic turmoil—has developed a backlog of regulations, many of which have been expected or pending for some time. It is expected that 2013 will prove to be a more fertile landscape for new environmental regulations. Regulations to watch out for in the coming year include:

  • Hydraulic fracturing regulatory determinations under TSCA, RCRA, CWA, EPCRA, and FIFRA. The rapid expansion of the natural gas industry resulting from “fracking” technology is expected to result in federal regulations under a variety of environmental statutes.
  • New industry sector air quality rules: boiler MACT rule, cement MACT rule.
  • New potential action on greenhouse gas regulations.
  • CWA § 316(b) cooling towers rule—stricter protections for fish in cooling reservoirs.
  • CWA coal ash disposal rule.
  • • Farming—farm dust regulations and spill prevention rule for farming operations.
  • • Clean Air Act—Tier III gasoline sulfur reduction.
  • • New nationwide stormwater regulations.
  • • EPA guidance on jurisdictional waters under CWA.
  • • EPA control of Florida nutrient standards under CWA.
  • • Tighter ozone regulations.

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