Tag: EPA

EPA Sees New Challenges Ahead for Superfund

EPA released a four-year “strategic plan” on February 12 that continues to emphasize the EPA Superfund environmental clean-up program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

 

© 2018 Beveridge & Diamond PC
This post was written by Loren Dunn of Beveridge & Diamond PC.

Bye, Bye Birdie: Summary and Analysis of the Trump Administration’s Recent Policy Change of the Migratory Bird Treaty Act

I. Background

Just over a month ago, on December 27, 2017, the United States Solicitor’s office issued a Memorandum Opinion reversing the Obama-era policy of interpreting the Migratory Bird Treaty Act (“MBTA”) to include “unintentional” or “incidental” takings of migratory birds. Under the new interpretation, the federal agencies under the Department of the Interior (or the “Department”) will no longer be able to threaten or impose criminal liability with respect to the MBTA for any activity which unintentionally or incidentally impacts migratory birds.

For nearly 20 years, federal agencies1 have used the threat of criminal prosecution under the MBTA as leverage to impose costly mitigation on any activities requiring NEPA compliance or some sort of permit from a federal agency. At the same time, because MBTA does have a meaningful “take permit” regime, refusing to commit that even with such costly mitigation such projects were protected from criminal liability. As a practical matter, these mitigation requirements have increased the costs of infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

With this policy change, the Trump Administration has removed the threat of federal prosecution. However, it stops short of alleviating the costly mitigation obligations because of the outstanding requirements of a 2001 Executive Order and the protections required with respect to companion federal statutes, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act. As outlined herein, the Memorandum Opinion relieves some pressure but leaves federal agencies with tools to continue to impose costly mitigation requirements aimed at preventing “incidental” or “unintentional” takes of migratory birds. In other words, absent revocation of the 2001 Executive Order, the Memorandum Opinion is merely lip service with respect to reducing cost impediments to infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

II. What is an “M-Opinion” and What Does the December 27, 2017, M-Opinion Actually Accomplish?

Many environmental organizations have expressed dismay at the December 27, 2017, M-Opinion, claiming that it will lead to a “parade of horribles” with respect to migratory birds.2  

Ostensibly, some of the hyperbole is aimed at drumming up “rage donations.3 However, to understand the impact of the M-Opinion, one must first take the time to understand exactly what an M-Opinion can and does do and what it cannot and does not accomplish. Notably, the M-Opinion in question did not, and cannot, repeal and replace the 2001 Executive Order directing agencies to impose mitigation to impacts associated with intentional and unintentional takings of migratory birds. This simple, indisputable, fact obviates the fear mongering.

The Department of the Interior can communicate using many different methods, each of which requires different formalities before issuance and results in a different amount of influence and authority (e.g., regulations, policies, guidance, memoranda, directives, and opinions). Some agency publications are advisory, some are specifically tailored to a particular case, and others are intended to reach everyone affected by a federal statute overseen by the Department or the agencies thereunder. The “M-Opinion” is one of the latter.

An M-Opinion (a “Memorandum Opinion”) is a written opinion issued by the Solicitor for the Department of the Interior on a particular topic that constitutes the Department’s official legal interpretation on a matter within its jurisdiction. M-Opinions are binding on all other offices and divisions within the Department of the Interior. Once issued, an M-Opinion can only be withdrawn, overruled, or modified by the Solicitor, the Secretary of the Interior, or the Deputy Secretary.

The MBTA was enacted in 1916 to respond to the overwhelming amounts of hunting that were devastating migratory bird populations. It is codified at 16 U.S.C. § 703. Section (a) of the MBTA makes it a crime to, “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill,” or attempt to do so to “any migratory bird, any part, nest, or egg of any such bird….” The U.S. Fish and Wildlife Service has defined “take” to mean “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or attempt to do so.

Violations of the MBTA are criminal offenses:  some misdemeanors, some felonies. Misdemeanor violations of the MBTA are “strict liability” offenses, which means that it does not matter whether the offender intended to violate the statute. So, if a hunter shoots a bird believing it to be nonmigratory, but it turns out to actually be migratory, his intent or belief is irrelevant. By taking a migratory bird, he committed a federal crime.

On its face, the MBTA might seem easy enough to follow: don’t hunt or kill migratory birds out of season. But look at the language again—the MBTA forbids killing a migratory bird “by any means or in any manner.” Does that language extend to migratory birds that die after landing in retention ponds meant to contain toxic waste? Or to the birds that run into windmills (killing approx. 174,000 birds/year) or buildings (303.5 million)? What if you hit a bird with your car (causing an estimated 200 million bird deaths/year)? If your cat kills a pigeon (which is migratory and, thus, falls under the MBTA), have you committed a federal crime? (Cats kill an estimated 2.4 billion birds/year). These sorts of activities which aren’t meant to kill birds, but do anyway, are referred to commonly as “incidental take” or “unintentional take.”

Prosecutors began filing criminal charges under the MBTA based on incidental take more than 40 years ago. The MBTA has been amended a few times since then, but incidental take was not directly addressed by the statute4. Interpretations differ. On the one hand, it seems extreme to impose criminal charges against the owner of an energy project, but on the other, the MBTA seems written to protect migratory birds and power lines kill an estimated 30 million birds each year. The text of the statute seems like it is aimed at hunting and poaching, but it also expands the scope to killing birds “by any means. Courts across the country have split as to whether incidental take can trigger strict liability.

In an effort to resolve the discrepancy, the Solicitor issued M-Opinion 37041 in January 2017, which affirmed that incidental take wasprohibited under the MBTA. That M-Opinion was suspended by the new Acting Secretary of the Interior in February 2017. Then on December 22, 2017, the Deputy Solicitor issued a new M-Opinion, M-37050, which withdraws and replaces the old opinion and decrees that the MBTA does not extend to incidental take.

When boiled down, the analysis in the new M-Opinion (hereinafter referred to simply at the “M-Opinion”) interprets the statute differently in four significant ways:

  • First, the M-Opinion affirms that a violative action must have some intent behind it to take or kill a bird, i.e. “purposeful and voluntary affirmative acts directed at reducing an animal to human control.” [p. 22]. Driving a car, erecting a windmill, or owning a cat are not actions designed to kill birds, even if it is likely or foreseeable that some birds will die. But shooting a gun, setting a trap, knocking down a nest, those are all acts with some intent behind them to kill or capture. The latter actions will have strict liability applied against them, but the former actions will not. The old opinion applied strict liability to all actions.
  • Second, the M-Opinion gives a different interpretation of the statutory language.5  The old opinion interpreted the relevant language to prohibit any activity that kills a bird “by any means, in any manner.” But the new M-Opinion declares that such a broad reading cannot have been what Congress intended. Instead, the “any means, any manner” language should be more narrowly applied only to intentional acts aimed at the bird. In other words, any means or manner of an intentional act aimed at a bird (e.g. guns, bows, air rifles, nets, lasers, or any other creative ways to take the bird) will violate the statute.
  • Third, the M-Opinion looked at the legislative history of the MBTA and concluded that the MBTA was only ever intended to regulate overhunting, not to protect bird habitats or control any action that might have an incidental impact on migratory birds.
  • Finally, the M-Opinion disagreed as to the effect of subsequent legislation on the MBTA. For example, the old opinion relied on the 2003 legislation that authorized any incidental take by the military. Why, it reasoned, would that manner of incidental take need an explicit authorization unless every other form of incidental take was not authorized under the MBTA? But the new M-Opinion says that the 2003 legislation was at best a precautionary measure that did not change the scope or language of the MBTA itself. The M-Opinion reasons that if Congress wanted to incorporate incidental take into the MBTA, it would do so directly and not by such a vague reverse inference.
    • Similarly, the M-Opinion explains that a 2001 Executive Order from President Clinton, which expanded the definition of “take” to include incidental take, was only part of a direction as to how agencies should focus their energies, not an attempt to expand the scope of the MBTA itself (nor could an executive order change the text of a Congressional law). [p. 32]

Ultimately, the M-Opinion comes back to the Constitution and a common sense rationale. Due process under the Constitution requires that we be able to reasonably understand whether an action we take would constitute a crime. But the Opinion reasons that if incidental take constituted a criminal act, no one could know whether or not they would commit a crime from day to day.  The scope of liability “is virtually unlimited.” [p. 33]. Even if they drove a car while obeying all traffic laws or built a building or power line in compliance with all of the relevant regulations, if doing so killed a bird they would have committed a crime punishable by imprisonment. Only the prosecutor’s discretion would keep that person from jail. The M-Opinion warns that such a broad interpretation of the MBTA would not be constitutional.

The M-Opinion concludes that including incidental take within the scope of the MBTA makes the statute vague to the point of absurdity. It points out that even if a developer completely complies with the Fish and Wildlife Service’s MBTA Guidelines, compliance with those guidelines does “not provide enforceable legal protections” based on that compliance and the developer may still be prosecuted should bird death occur. [p. 38-39]. It “is literally impossible” to know what is required under the law if the MBTA includes incidental take, and that does not comply with the Constitution’s guarantee of due process. Id.

III. “Bird is [still] the Word” ”—the M-Opinion Falls Short of Relieving Developers Required to Traverse Federal Lands or Secure a Permit or Approval from a Federal Agency from Mitigating Impacts Associated with “Unintentional” or “Incidental” Impact to Migratory Birds

Just because incidental take is not a criminal violation of the MBTA doesn’t mean that federal agencies will suddenly allow an incidental “open season” to occur. Those agencies will still work to minimize unintentional impacts to migratory birds. And those agencies will also still be required to analyze and approve the environmental impact of projects before they can be approved. Put simply, if the agency doesn’t believe that enough is being done to prevent incidental take, it can and will require the developer to employ mitigation measures even without the threat of criminal prosecution. If developers don’t comply, the agencies won’t issue the relevant permits or decisions needed for a particular project to proceed.

This reality is somewhat acknowledged by the M-Opinion’s discussion of the 2001 Executive Order. The Opinion distinguished the 2001 Clinton Executive Order (“EO-13186” or the “2001 Executive Order” or “Executive Order 13186”)6 as only providing internal guidance to federal agencies, not interpreting the MBTA. But that Executive Order remains in effect, thereby reducing the overall efficacy of the M-Opinion.

The scope of Executive Order 13186 includes “unintentional take,” and defines it as “take that results from, but is not the purpose of, the activity in question.” Section 2(c). The 2001 Executive Order required each federal agency to enter into a Memorandum of Understanding to define the term “action” with respect to each agencies responsibilities under the 2001 Executive Order and that “that shall promote the conservation of migratory bird populations.” 2001 Executive Order at Section 3.

Pursuant to EO-13186, in April 2010, the Bureau of Land Management and Fish and Wildlife Service entered into the MEMORANDUM OF UNDERSTANDING between the U.S. Department of the Interior Bureau of Land Management and the U. S. Fish and Wildlife Service To Promote the Conservation of Migratory Birds (the “BLM-FWS MOU”). The BLM-FWS MOU provides that BLM will, “[i]n coordination with the FWS, develop conservation measures and ensure monitoring of the effectiveness of conservation measures to minimize, reduce or avoid unintentional take.” Paragraph G. Paragraph I provides that the BLM will “[i]ntegrate migratory bird conservation measures, as applicable, into . . . renewable (wind, solar, and geothermal) energy development NEPA mitigation. This will address habitat loss and minimize negative impacts.” Additionally, the BLM-FWS MOU defines “Action” as “any action, permit, authorization, collaborative effort, program, activity, project, official policy, rule, regulation or formal plan directly carried out by the agency.” Paragraph IX. Finally, the BLM-FWS MOU defines “take” as “to pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to pursue, hunt, wound, kill, trap, capture or collect (50 CFR Section 10.12).” Paragraph IX. It goes on to note that the “Executive Order further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional take, meaning take that results from, but is not the purpose of, the activity in question.” Id. Finally, it states that “[b]oth intentional and unintentional take constitute take as defined by the regulation.” Id. Consequently, the BLM-FWS MOU makes clear that anybody seeking a federal permit or right-of-way from the BLM will be required to continue to integrate mitigation measures to address impacts to migratory birds, both intentional and unintentional/incidental impacts.7

Summarily, the M-Opinion clarifies that criminal liability for “taking” a migratory bird under the MBTA will not extend to the unintentional or incidental impacts to migratory birds. However, the M-Opinion fails to address the seemingly inconsistent definitions of “take” contained in the agency MOUs with FWS executed pursuant to the 2001 Executive Order. Ultimately, because of the 2001 Executive Order and the MOUs executed as a result therefrom, all the M-Opinion did was remove the threat of criminal prosecution from the quiver of arrows used by federal agencies to impose mitigation requirements. Removal of the threat of criminal prosecution may allow project proponents to have more candid discussions regarding mitigation without the fear and threat of federal criminal prosecution. But federal agencies can (and likely will) still condition approvals and permits on the inclusion of the same panoply of mitigation requirements it always has, at the same cost.

The M-Opinion should be further amended to reconcile the inconsistency between its interpretation of the MBTA and the definition of “take” under the MBTA contained in the 2001 Executive Order and the agency MOU executed pursuant thereto. Absent such a clarification, there will continue to be confusion as to the scope of the MBTA with respect to whether a federal agency can require costly mitigation of incidental or unintentional impacts associated with infrastructure development, renewable energy development, and mining projects which traverse federal lands or have a federal nexus such that agency approval of some sort is required.

References:

1 As used herein, “federal agency” or “federal agencies” shall only include those federal agencies under the Department of the Interior.
2 See e.g. http://www.audubon.org/news/the-white-house-turns-its-back-americas-birds (last visited January 26, 2018).
3 https://www.npr.org/2017/03/26/520854771/the-resistance-faces-a-new-question-what-to-do-with-all-that-money (last visited January 26, 2018); https://www.gq.com/story/the-rise-of-the-rage-donation (last visited January 26, 2018)
4 Congress did, however, adopt a regulation in 2003 that authorizes the incidental take of migratory birds during military training exercises.  50 C.F.R. § 21.15.
5 Bear in mind that section (a) of the statute is a single sentence containing 230 words. The question of whether and how a single clause should apply to another clause within that sentence can make a significant difference in statutory interpretation.
6 Executive Order 13186 is available online at https://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13186migratorybirds.pdf (last visited January 29, 2018)
7 The M-Opinion applies to all agencies under the Department of the Interior, which can be found online at: https://www.usa.gov/federal-agencies/u-s-department-of-the-interior (last visited January 29, 2018).  The other agencies have MOUs that likewise define “take” under the MBTA to include incidental or unintentional impacts to migratory birds.  See e.g. Bureau of Reclamation and FWS MOU, https://energy.gov/sites/prod/files/2013/10/f3/Final%20signed%20MOU%20-%20Migratory%20Birds_0.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question.  Both intentional and unintentional take constitute take as defined by the MBTA.”); National Park Service and FWS MOU, https://www.nature.nps.gov/biology/migratoryspecies/documents/MBMOUNPSSigned041210.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question. Both intentional and unintentional take constitute take as defined by the MBTA.”); Office of Surface Mining, Reclamation and Enforcement and FWS MOU, https://www.osmre.gov/lrg/docs/2016_MOU_Migratory_Bird_Conservation.pdf (last visited January 29, 2018) (“Executive Order 13186 further defines take to include intentional take, meaning take that is the purpose of the activity in question, and unintentional (or incidental) take, meaning take that results from, but is not the purpose of the activity in question. Both intentional and unintentional take constitute take as defined by the MBTA.”).

Copyright © 2018 Ryley Carlock & Applewhite. A Professional Association. All Rights Reserved.
This post was written by Jason Cassidy and Samuel Lee Lofland of Ryley Carlock & Applewhite.
More environmental news is available on the National Law Review’s Environmental Law page.

EPA Approves Flint Hills Resources’ Plant For Cellulosic Ethanol Production

On October 12, 2017, Edeniq, Inc., a leading cellulosic and biorefining technology company, announced that Flint Hills Resources, a member of the Biobased and Renewable Products Advocacy Group (BRAG®), received approval from EPA for cellulosic ethanol production at its Iowa Falls ethanol plant.  The 100 million gallons per year plant will use Edeniq’s Pathway technology to produce the cellulosic ethanol and will be eligible to qualify its cellulosic gallons for generating D3 Renewable Identification Numbers (RIN).  Iowa Falls is the second Flint Hills Resources plant, and the fifth overall, to receive approval for cellulosic ethanol production using Edeniq’s technology.  Edeniq announced in December 2016 that EPA approved Flint Hills Resources’ registration of its Shell Rock ethanol plant for cellulosic ethanol production.  According to Edeniq, its Pathway technology “remains the lowest-cost solution for producing and measuring cellulosic ethanol from corn kernel fiber utilizing existing fermenters at existing corn ethanol plants, and has already proven cellulosic ethanol yields of up to 2.5% or higher, as a percentage of its customers’ total volume output.”  Additionally, the technology allows for increases in corn oil production and greater overall ethanol yields.

This post was written by Lauren M. Graham, Ph.D. of Bergeson & Campbell, P.C., ©2017
For more legal analysis go to The National Law Review

EPA Acts to Increase Supply of Clean Drinking Water in U.S. Virgin Islands

WASHINGTON (September 23, 2017) — The U.S. Environmental Protection Agency (EPA) today issued an order to the Federal Emergency Management Authority (FEMA) and the Department of Defense (DOD) that provides direction on supplying of clean drinking water in the U.S. Virgin Islands in response to impacts to the island’s drinking water system from Hurricane Maria and Hurricane Irma.

The order authorizes FEMA and DOD to install and operate temporary water treatment units that will provide a supply of clean drinking water. U.S. Virgin Islands public water systems are currently not in operational condition. The lack of clean alternative water supplies has created the potential for significant public health impacts. USVI public water systems have been significantly impacted by Hurricanes Maria and Irma and subsequent flooding, including by a loss of electrical power, and are not yet fully able to provide adequately treated water to meet the needs of those affected areas.

EPA is monitoring environmental and public health conditions across the U.S. Virgin Islands and Puerto Rico and is working closely with federal, territorial and local officials to ensure impacts from the hurricanes are addressed in order to protect public health.

Read this article on the EPA website here.

This post was written by the United States Environmental Protection Agency © Copyright 2017
For more Environmental & Energy Legal Analysis go to the National Law Review

EPA Announces Updates to Pesticide Label Review Manual

On September 19, 2017, the U.S. Environmental Protection Agency (EPA) announced an update to Chapters 15 and 16 of the Office of Pesticide Programs’ (OPP) Label Review Manual.  

Updates to Chapter 15: Company Name and Address, include removing non-label related instructions on submitting address change requests and updating the National Pesticide Information Center’s contact information, including new hours of operation. Updates to Chapter 16: Graphics and Symbols, include adding hyperlinks to graphic and logo examples and allowing a QR (Quick Response) code as an acceptable symbol when used only for retail pricing.

EPA states that the Label Review Manual, which began as a guide for EPA label reviewers, serves as a tool to assist registrants in understanding the pesticide labeling process and assists registrants in understanding approaches for how labels should generally be drafted.  Pesticide product labels provide critical information about how to safely and legally handle and apply pesticides.  EPA directs registrants to submit questions or comments on the Label Review Manual by using its Pesticide Labeling Questions & Answers — Form.

This post was written by Barbara A. Christianson of  Bergeson & Campbell, P.C. ©2017
For more legal analysis go to The National Law Review

Court Orders Monsanto Roundup Safety Documents to be Disclosed

Monsanto is catching a lot of heat now that a court has unsealed documents that cast the company in a negative light and suggest that it was responsible for providing false assertions to the government and public regarding the safety of Roundup. As the most popular herbicide in the world, Roundup and similar products produced by Monsanto are used across the globe for the elimination of pests from lawns, crops, gardens and nurseries. It has provided research that opposes the belief Roundup’s main active ingredient can cause cancer, but the documents unsealed by the court show that these accounts were misleading and, in some cases, false.

Ghostwritten Research

The research that was presented to defend the safety of its products was in fact, ghostwritten and attributed to academics. It also claimed that a senior EPA official attempted to dismiss a report from the United States Department of Health and Human Services that the product could in fact be linked to the deaths of numerous people who suffered from non-Hodgkin’s lymphoma. The evidence tells a story of arguments within the Environmental Protection Agency and conflicting beliefs over whether Roundup and similar products were safe to use.

Emails between Monsanto executives and Jess Rowland of the EPA discuss an effort to disrupt the efforts of the Department of Health and Human Services to make its own determination and review of the product. Rowland states in the emails that he should receive a medal if he is able to succeed in his interference.

World Health Organization Classifies Products as Carcinogenic

The growing litigation over Roundup was sparked off by the classification of Roundup as a carcinogen, due to the discovery of a link between glyphosate and cancer in animals and the destruction of DNA and chromosomes in human cells. Despite the research provided by the WHO, Monsanto went to great lengths to continue the defense of its product and to assert that it was as safe to consume as salt.

While Monsanto claims that glyphosate is safe, those who have come forward with claims against the company allege that Monsanto has repeatedly falsified research and information in order to fool the government and the public. In its defense, Monsanto has claimed that the unsealed documents are being presented out of context and that they provide isolated information. Numerous health agencies around the world have presented conflicting arguments over the safety of these products, so the science has not been settled just yet.

This post was written by Jonathan Rosenfeld of Rosenfeld Injury Lawyers, Copyright © 2017
For more legal analysis go to The National Law Review

EPA Ready to Support FEMA, State Efforts on Hurricane Harvey

EPA has an organized emergency response program for responding to man-made and natural disasters and is positioned to support the Federal Emergency Management Agency (FEMA), state, local, and tribal partners in response to Hurricane Harvey.

“I am in regular contact with EPA Region 6 and want to commend them for their leadership and preparation,” said EPA Administrator Scott Pruitt. “EPA is closely coordinating with state and regional partners, and we have teams standing by to support FEMA.  EPA is ready to respond to anything that may occur due to Hurricane Harvey.”

EPA headquarters emergency operations center is monitoring the storm closely and making preparations to activate in order to support states and regions affected by the storm.

EPA’s Region 6 office in Dallas is taking action to ensure that Superfund sites are secured in advance of the storm, to assist approximately 300 public drinking water system rapid assessments, and to seamlessly integrate emergency response activities with Texas, Louisiana, and other federal response agencies.

EPA supports hurricane preparedness and response in a number of ways, including:
•    Addressing Fuel Shortages: The Clear Air Act allows EPA Administrator Pruitt, in consultation with Energy Secretary Perry, to waive certain fuel requirements to address shortages that occur as a result of the storm. If Administrator Pruitt determines that extreme and unusual fuel supply circumstances exist in a state or region as a result of the hurricane, a temporary waiver can help ensure an adequate supply of gasoline is available in the affected area, particularly for emergency vehicles. EPA has an experienced team standing by to expedite handling of any fuel waiver requests by the states.

•    Monitoring Public Water Systems: Water systems can be severely impacted during hurricanes due to storm surge, flooding, or loss of power. EPA Region 6 has developed a tracking system for us to identify systems in the storm’s pathway. About 300 public drinking water systems are in the path (red zone) of hurricane Harvey in Texas. Both Texas Commission on Environmental Quality and Louisiana Department of Hospitals have uploaded their potentially impacted systems into Response Manager, which enables planning for rapid assessments to restore water systems after the storm passes and flood waters recede. Following the storm, and if the state requests federal assistance, EPA conducts damage assessments of both drinking water and wastewater systems to identify impacts to critical assets and assist in the recovery.

•    Securing Superfund Sites: EPA assesses conditions at the NPL Superfund sites in the storm’s pathway and tasks each Superfund National Priorities List (NPL) remedial site manager to assess conditions and make on-site preparations for high winds and heavy rainfall.  Following the storm and receding floodwaters, EPA conducts rapid assessments to identify damage at sites and initiate cleanup plans if necessary. Any on-site activities at sites located in the storm’s path are ceased until the all clear is given and on-site equipment is secured.  In addition, freeboard for lagoons or ponds is increased to accommodate forecasted rainfall if possible. After a hurricane makes landfall and any flooding recedes, the EPA remedial managers will conduct assessments of each Superfund NPL site to ensure no damage has occurred.

•    Assessing Conditions at Major Industrial Facilities: EPA assesses conditions at the major industrial facilities in the storm’s pathway to identify potential impacts and countermeasures. Following the storm and receding floodwaters, spills and releases are reported to the National Response Center. NRC notifies US Coast Guard or EPA based on preapproved jurisdiction boundaries. EPA conducts follow up inspections and damage assessments in response to reports within EPA jurisdiction.

As EPA prepares to support FEMA and its local and state partners, it continues to focus its message on the importance of public safety. For information and updates from EPA, please visit EPA’s emergency response website, www.response.epa.gov/Hurricaneharvey2017.

This post was written by the United States Environmental Protection Agency © Copyright 2017
For more Environmental Law analysis, go to The National Law Review

U.S. Court of Appeals Rules on Renewable Fuel Standard Battle

In July, the U.S. Court of Appeals, District of Columbia Circuit ruled in favor of renewable fuels advocates, including the Americans for Clean Energy and the National Corn Growers Association, agreeing with the petitioners that the Environmental Protection Agency (EPA) erred in how it interpreted and used the “inadequate domestic supply” waiver in the Renewable Fuel Standard law in setting low renewable fuel volumes for 2014-2016.

The National Corn Growers Association stated that the “court decision is a win for farmers, the biofuels industry, and consumers. This ruling affirms our view that the EPA did not follow the law when it reduced the 2014-2016 renewable fuel volumes below levels intended by Congress. The court held that EPA was wrong to interpret the phrase ‘inadequate domestic supply’ to mean ‘inadequate domestic supply and demand.’ We agree with the Court that effectively adding words to the law through this interpretation simply exceeds EPA’s authority.”

U.S. Circuit Judge Brett Kavanaugh wrote that the EPA isn’t allowed “to consider the volume of renewable fuel that is available to ultimate consumers or the demand-side constraints that affect the consumption of renewable fuel by consumers.”

The court ruling is a blow to oil refiners, who have argued that there are constraints to blending the fuels into petroleum. The American Petroleum Institute said in a statement it was “disappointed” with the court’s decision, which the trade group said highlighted the need for congressional action to reform the renewable fuel standard – a move congressional analysts have said is unlikely to happen.

This post was written by Aaron M. Phelps of Varnum LLP.
For more Environmental & Energy Legal News go to the National Law Review.

EPA Releases Final Test Guideline for Performance Against Bed Bugs

On June 14, 2017, the U.S. Environmental Protection Agency (EPA) issued a Federal Register notice announcing the availability of a final test guideline, Laboratory Product Performance Testing Methods for Bed Bug Pesticide Products; OCSPP Test Guideline 810.3900, part of a series of test guidelines established by the EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) for use in testing pesticides and chemical substances.  82 Fed. Reg. 27254.  EPA states that this test guideline provides “guidance for conducting a study to determine pesticide product performance against bed bugs, and is used by EPA, the public, and companies that submit data to EPA,” and “recommendations for the design and execution of laboratory studies to evaluate the performance of pesticide products intended to repel, attract, and/or kill the  common bed bug (Cimex lectularius) in connection with registration of pesticide products under the [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)].”  EPA states that this guidance applies to products “in any formulation such as a liquid, aerosol, fog, or impregnated fabric, if intended to be applied to have a pesticidal purpose such as to attract, repel, or kill bed bugs.”  This guideline provides appropriate laboratory study designs and methods for evaluating the product performance of pesticides against bed bugs and includes statistical analysis and reporting.

EPA issued the draft guideline on February 14, 2012.  This original document was the subject of FIFRA Scientific Advisory Panel (SAP) review conducted on March 6-7, 2012.  EPA indicates that the final version of the guideline reflects revisions to the original draft based on comments from the SAP and the public.  EPA states that the revisions include the following:

  • Decreasing the number of individuals and replicates tested;

  • Rescinding the recommendation to test each field strain for its resistance ratio; and including a resistance management statement;

  • Clarifying the agency’s Good Laboratory Practices (GLP) requirements;

  • Reducing the recommended length of time individuals are exposed to insecticides;

  • Recommending individuals to be observed up to 96 hours after treatment; and

  • Revising the statistical analyses recommendations.

EPA has also placed two other relevant documents in the docket:

This post was written by Lisa M. Campbell and Margaret R. Graham of Bergeson & Campbell, P.C..

President’s FY18 Budget Proposes Historic Cuts to EPA Funding and Staffing

On May 23, 2017, the White House unveiled the full version of President Trump’s proposed budget for fiscal year (FY) 2018 entitled “A New Foundation for American Greatness.”  As signaled in the President’s “skinny budget” released earlier this year, the proposed budget would fund the U.S. Environmental Protection Agency (EPA) at $5.7 billion — a more than 30 percent decrease from the current funding of nearly eight billion.  EPA’s congressionally enacted budget has remained relatively flat since 2000, other than a significant boost in 2010 to $10.3 billion.  The proposed FY18 budget also calls for an EPA staffing level of 11,611 — a thirty year low.  The proposed decreased staffing level equates to a 20 percent reduction in the overall EPA workforce, which would eliminate approximately 3,000 employees.  A portion of the staff cuts would come from programs proposed for elimination, including the Center for Corporate Climate leadership, the Coalbed Methane Outreach group, and greenhouse gas reporting programs.  Some of the staff cuts may be accomplished by early retirement and lump sum voluntary separation payment incentives.  On June 1, 2017, EPA Acting Deputy Administrator Mike Flynn sent an e-mail to EPA employees providing preliminary details and next steps on early retirement and separation incentive offers.  Employees who accept offers will leave EPA by early September 2017.

Funding for state and tribal assistance grants (STAG) and other funds for state and regional initiatives is markedly decreased or zeroed out in the proposed budget, with cuts totaling $482 million, or 45 percent below the current enacted levels.  According to the Environmental Council of the States, which represents state departments of environment, STAG monies support approximately 27 percent of state departments of environment annual budgets.

In the area of federal enforcement, the Office of Enforcement and Compliance Assurance’s (OECA) budget would decrease by nearly 25 percent below current funding.  This decrease would reduce civil and criminal enforcement by 18 and 16.5 percent, respectively.  Funding for laboratory and forensics costs that support enforcement cases, including monitoring, would decrease by over 40 percent.  The corresponding reduction in enforcement efforts is likely to result in increased litigation from environmental advocates, particularly for matters governed by the Clean Air Act and the Clean Water Act which authorize citizen suits.

The budget requests $65 million for chemical risk review and reduction efforts under the Toxic Substances Control Act (TSCA), an increase of nearly $3.8 million from the current level.  EPA’s budget document notes that TSCA fee collections, set to begin in the second quarter of FY18, will fund approximately 53 full-time employees to support the chemical review process that were previously funded by federal appropriations. This small boost in funding may not be sufficient enough to support the implementation of “new TSCA,” however, and the implementation could still result in delays.

skinny budget donald trumpThe President’s budget provides $99.4 million in appropriated funding to support EPA’s pesticide registration review and registration program, including implementation.  This amount would decrease funding by $20.4 million from current enacted levels.  In addition to budget appropriations, EPA’s pesticide program is supported by Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) maintenance fees and Pesticide Registration Improvement Act (PRIA) registration application fees.  These fees combined typically generate approximately $40-45 million in additional funding per year. Congress is currently considering the reauthorization of PRIA, which would increase application fees.  Together, however, the total amount of funds available to operate the pesticide program (appropriations and industry fees) have declined over the past years and present a threat to the pesticide program’s ability to meet application review deadlines.

EPA Administrator Pruitt’s Back-to-Basics agenda includes addressing hazardous waste clean-up of the sites that have remained on the Superfund National Priorities List for decades.  In spite of this priority action item, the proposed budget would fund the Hazardous Substance Superfund Account at $762 million, $330 million below the 2017 level.  Instead of relying on the Superfund account to finance remediation, EPA instead would use existing settlement funds to clean up hazardous waste sites.

EPA’s Office of Water’s overall funding would decrease by nearly 20 percent. The Clean Water and Drinking Water State Revolving Funds (SRF) funding levels would remain funded at current levels. The SRFs support states’ administration of their drinking water and surface water programs and related infrastructure projects.  Steep cuts to STAG grants, and zeroing out of the Section 319 Nonpoint Source program and regional initiatives like the Great Lakes and Chesapeake Bay programs will be felt at the state level. The Section 319 program targets nonpoint source pollution, including runoff from agricultural working lands. States use 319 program funds to support watershed improvement projects and incentivize voluntary installation of best management practices on farms (e.g., grass waterways and buffers).

EPA’s FY18 Budget in Brief provides more details on proposed budget allocations and priorities.  The President’s budget is likely to face steep opposition in Congress, which has until September 30, 2017, to pass a budget for FY18, although this timeline will likely be extended through the use of continuing resolutions.  The House is slated to finish its work on appropriation bills before the July 4, 2017, holiday break, which should provide more insights on how much influence the President’s budget will have with appropriations leadership.

This post was contributed by the Government Regulations practice group at Bergeson & Campbell, P.C.