Natural Resources Defense Council v. EPA

Jun 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1053, Natural Resources Defense Council (NRDC) v. U.S. EPA, with American Chemistry Council intervenor. In short summary the Appeals Court explains that synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the NRDC and the Louisiana Environmental Action Network (LEAN), challenged EPA’s "residual risk" rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals (the industry). Petitioners also challenged EPA’s technology review under subsection 112(d)(6). The Appeals Court said, "In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners’ challenge. We deny the petition."

Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."

In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.

In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.

In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."

In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”

In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."

The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.

Access the complete 18-page opinion (click here). Access a release from NRDC (click here). Access a release from ACC (click here).

Miami-Dade County v. EPA

Jun 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-10551, 10-574- 76, 10579, 10583. Miami-Dade County, four cities, and a regional wastewater treatment facility and the Sierra Club all petition for review a Final Rule promulgated by U.S. EPA that amended the current Federal underground injection control (UIC) requirements for Class I municipal disposal wells in Florida. The petitioners argued that the Final Rule conflicts with the plain language of the authorizing statute, that EPA’s approach to UIC regulation in South Florida is arbitrary and capricious, and that EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act (APA). The Eleventh Circuit denied the petition.

Some of the many arguments raised by the petitioners include the following. The Sierra Club said EPA impermissibly considered the utility of underground injection of waste in comparison with other disposal options, and EPA failed to address the existence of several potential threats to human health posed by pathogens, nutrients, and other contaminants. The Municipalities and County complained that the Final Rule failed to take into account differences in Florida geology and hydrology. The County also argued that the Final Rule’s imposition of a high-level disinfection requirement, as opposed to some lower level of
disinfection, is arbitrary and capricious.

The Municipalities also argued that the Final Rule is not supported by the record due to four alleged flaws in the Risk Assessment’s methodology: (1) failure to consider the concentration of contaminants already present in the aquifers, (2) failure to employ a quantitative probabilistic risk analysis methodology, (3) failure to consider the results of a then-unpublished University of Miami study of well disposal practices, and (4) faulty assumptions about contaminant plumes. The criticisms were based on a review of the Risk Assessment performed by two scholars, a geologist, and a public utilities manager.

In a 49-page decision the Appeals Court said, "We conclude that the EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the Final Rule to new Class I wells as required by the APA. We further conclude that the petitioners have failed to show that the Final Rule is inconsistent with the statutory authority granted the EPA under the SDWA or that the Final Rule is unsupported by the record, or otherwise arbitrary and capricious."

Access the complete opinion (click here).

Natural Resources Defense Council v. U.S. EPA

May 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-73217. The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), challenged aspects of U.S. EPA's Clean Water Act (CWA) storm water discharge rule. This rule, known as “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities” [71FR 33,628, 6/12/06, codified at 40 C.F.R. § 122.26)]. The rule exempts from the permitting requirements of the CWA discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards.

NRDC, et al contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, as amended by section 323 of the Energy Policy Act of 2005, and under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The Appeals Court granted their request and vacated the rule, and remanded the matter to EPA for further proceedings in accordance with the opinion.

The two Judge majority concluded in part, ". . . Clearly, EPA’s June 12, 2006, storm water discharge rule, codified at 40 C.F.R. § 122.26, represents a complete departure from its previous interpretation of what constitutes “contamination” under section 402(l)(2). As such, we conclude that EPA’s inconsistent and conflicting position regarding the discharge of sediment-laden storm water from oil and gas construction sites causes its interpretation of amended section 402(l)(2), as reflected in the storm water discharge rule, 40 C.F.R. § 122.26, to be an arbitrary and capricious one. . . This conclusion is reinforced by the fact that neither the amending statute (section 323), the statutory definition (section 503(24)), nor the statutory exemption (402(l)(2)) make any mention at all of 'sediment' -- or of whether it is covered or not.

In a dissenting opinion, Justice Callahan said, ". . . as the majority correctly concludes, this dispute must be resolved at step two of the Chevron analysis, with the question of whether the Environmental Protection Agency (EPA) provided a -- not the only or the best -- permissible interpretation of section 402(l)(2). It is at this point that I respectfully part course with the majority and accord EPA’s permissible interpretation appropriate deference. . . because EPA’s 'interpretation is at least as plausible as competing ones,' this court should defer to its construction."

Commenting on the decision, Aaron Colangelo, senior attorney at NRDC said, "It is well known that sediment pollution from oil and gas development can impair water quality and destroy aquatic habitat. Yet under the guise of enforcing the 2005 Energy Act, EPA exempted projects from the requirements of the Clean Water Act. Today, the court rightly decided that the EPA rule was arbitrary and capricious. The law clearly requires oil and gas projects to apply for permits and install pollution controls to protect water quality. The explosion of oil and gas exploration and production poses a serious threat to water quality throughout the West. Sediment from projects runs off into streams and rivers; harming aquatic life; increasing water treatment costs for towns and cities; decreasing property values; and interfering with recreational activities, such as boating, swimming and fishing."

Access the complete opinion (click here). Access a statement from NRDC (click here). Access more information about exemptions in federal environmental laws for the oil and gas industry in the NRDC report, Drilling Down: Protecting Western Communities from the Health and Environmental Effects of Oil and Gas Pollution (click here). Access EPA's docket for this rulemaking (click here).

Our Children's Earth Foundation v. U.S. EPA

May 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16214. Environmental advocates, Our Children’s Earth Foundation and Ecological Rights Foundation (collectively OCE), filed a citizen suit under the Clean Water Act, alleging that U.S. EPA failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE claims that EPA violated its statutorily-mandated duties by abandoning "technology-based" review in favor of "hazard-based" review; neglecting to identify "new" polluting sources; and failing to publish timely plans for future reviews.

The Appeals Court explained that, "A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology, whereas a hazard-based approach seeks to identify known hazards or contaminants in the water and to reduce the prevalence of those hazards. Although these approaches are not mutually exclusive, OCE claims that EPA jettisoned a technology-based approach altogether, thus abdicating its statutory duties."

The district court granted judgment in favor of EPA, holding that the challenged acts or omissions were discretionary. The Appeals Court said, "We agree that the decisions whether to revise the effluent guidelines and whether to incorporate technology-based criteria in its periodic review of the guidelines fall within EPA’s discretion. Consequently, we affirm."

On a related Motion to Transfer issue, the Appeals Court said, "The district court properly dismissed OCE’s claims regarding the manner and timing of review of the guidelines, the scheduling of plan publication and identification of new polluting sources, and did not abuse its discretion in refusing to transfer OCE’s claims to this court."

Access the complete opinion (click here).

United States v. Manning (WA Dept. of Ecology)

May 21: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35613, 06-35664, 06-35765. The case involves the Hanford Nuclear Reservation (Hanford) in Washington State -- one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste; currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes.

Over the decades, the United States Department of Energy (DOE) has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.

In 1989, Washington’s Department of Ecology (Ecology), the DOE, and U.S. EPA entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal
and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements. The present appeal arises out of an effort by Washington voters “to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete.”

The Ninth Circuit said, "Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 (I-297), the Cleanup Priority Act (CPA), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption."

Access the complete opinion (click here).

U.S. v. Wilderness Society

May 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-15596. As explained by the Appeals Court, this is a dispute over the status of a road on U.S. Forest Service land in Elko County, Nevada. The case was before the Ninth Circuit for the first time in 2002. See United States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At that time, the intervenor-appellant environmental groups wanted to object to the terms of a proposed settlement between the United States and Elko County that effectively allowed the County to repair the road. The Appeals Court ordered the district court to grant the motion to intervene.

The intervenor-appellants are now back, claiming that the district court disregarded the Appeals Court mandate by not permitting them to intervene in the Quiet Title Act portion of the suit that was the subject of the proposed settlement and therefore was the critical part of the litigation. The district court, after the Appeals Court decision, permitted the intervenor-appellants to appear only as amici during the settlement approval proceedings; it denied their motion to participate in an evidentiary hearing. After the hearing, the court ruled against their position on the merits without, in appellants’ view, permitting them adequate participation. The intervenor-appellants Appealed and requested the Ninth Circuit not only to vacate the approval so they can fully present their position, but they also request the Appeals Court to reach the merits and rule in their favor.

For their part, the United States and the County defend the settlement, contending that the intervenors’ participation was adequate because the district court properly, in appellees’ view, ruled that the intervenors lacked standing to participate as a party in the quiet title proceedings in light of their lack of any property interest in the disputed right of way for the road. The Appeals Court ruled, "pursuant to our earlier mandate, we hold that the district court must permit the intervenors to participate as parties in advocating their position in the Quiet Title Act action. We must vacate the settlement approval to effectuate that result. We also hold that the intervenors’ cross-claims are reviewable under the APA. The approval of the settlement of the Quiet Title Act claim is vacated, as is the district court’s order denying the appellants’ motion to intervene. The district court’s dismissal of the appellants’ cross-claims is reversed. The case is remanded for further proceedings consistent with this opinion."

Access the complete opinion (click here).

AES Sparrows Point v. Smith

May 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1615. AES Sparrows Point LNG, LLC and Mid-Atlantic Express, LLC (together, AES) brought the suit against Baltimore County, Maryland, its executive, and its zoning commissioner (together, the County) seeking a declaration that County Bill 9-07, which prohibits the siting of any liquefied natural gas (LNG) terminal in the County’s Chesapeake Bay Critical Area, is preempted by the Natural Gas Act (NGA). The district court granted summary judgment to the County, concluding that Bill 9-07 is saved from preemption because it "is within the delegated authority of the State of Maryland and the County under the Coastal Zone Management Act" (CZMA) and "is enforceable as part of the State of Maryland’s Coastal Management Program." J.A. 271, 284. AES appealed.

The Appeals Court overturned the district court ruling and said, "We hold that Bill 9-07 is not part of Maryland’s federally approved Coastal Zone Management Plan (CMP), and therefore is not saved from preemption as an exercise of Maryland’s rights under the CZMA. Accordingly, we reverse the judgment of the district court and remand for further proceedings."

The Appeals Court said "our inquiry must focus first on whether Bill 9-07 has been incorporated into Maryland’s CMP. The CZMA specifies the manner by which a state may amend its approved CMP. . . 'Amendment' for purposes of the CZMA is defined in 15 C.F.R. § 923.80(d) . . . We have no difficulty concluding that Bill 9-07 is an 'amendment' of Maryland’s CMP because it imposes a categorical ban on LNG terminals in the Chesapeake Bay Critical Area that the CMP did not previously contain. . .

"The County does not dispute that it has never presented Bill 9-07 to NOAA for approval as required by the CZMA. The CZMA makes clear, however, that the mere adoption of Bill 9-07 into the County’s CAPP by Maryland’s Critical Area Commission is not sufficient to make Bill 9-07 part of Maryland’s CMP. . . Until NOAA approves Bill 9-07 or fails to take action after being presented with it, it is not part of Maryland’s CMP and cannot be saved from preemption by the NGA’s Savings Clause. Therefore, Bill 9-07 is preempted by the NGA’s grant of exclusive authority to FERC 'to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal,' 15 U.S.C. § 717b(e)(1), and may not be enforced by the County to prevent the construction of an LNG terminal at Sparrows Point."

Access the complete opinion (click here).