The Nickel Report

Responding to an EPA collection request can be costly, time consuming and stressful for the target of the request—especially because failure to submit a timely and accurate response can result in significant civil or criminal penalties. On November 21, EPA’s Office of Water (OW) and Office of Civil Enforcement (OCE) issued new policies that, if followed, promise to make the process more reasoned and less burdensome.

Because of their widespread environmental presence, persistence and bioaccumulation, the group of substances known as PFAS have been described as a “Perfect Storm” of liability. The number of plaintiff’s suits concerning PFAS have spiked in the last few years. Also, EPA faces increasing bipartisan calls from Congress to adopt new drinking water standards and cleanup levels. In the interim, states are filling the void. In October 2017, the New Jersey Department of Environmental Protection  announced a maximum contaminant level (MCL) of 14 parts per trillion for PFOA. Some NGO’s have called for levels as low as 1 part per trillion.

A pending petition for rulemaking under the Toxic Substances Control Act (TSCA) could represent the latest test of the scope of TSCA’s citizen petition provisions. Denial of this petition would tee up a precedent-setting court battle addressing citizens’ ability to force EPA to exercise its TSCA section 8 authority to require chemical data reporting. And while the petition on its face is focused on requiring additional information collection, it could have important implications for EPA’s implementation of TSCA’s amended provisions regarding regulation of existing chemicals under section 6.

On November 15, 2018, the Federal Energy Regulatory Commission (Commission) held its monthly open meeting (November Meeting). This was the first meeting chaired by Chairman Chatterjee since replacing Commissioner McIntyre as chairman. Commissioner McIntyre was absent for his third consecutive open meeting due to continuing health issues and did not vote on the consent agenda.

Nobody wants to live near a designated “Superfund” site. Aside from potential exposure to hazardous chemicals, the stigma associated with proximity to a Superfund site leads to loss of property value. In addition, the Superfund process is notorious for its record of protracted and expensive cleanups. In view of these well-founded concerns, a number of states have adopted voluntary cleanup programs (VCPs) as alternatives to the federal Superfund program. A well-structured and well-run VCP can keep a contaminated property out of the Superfund program while at the same time providing a mechanism for investigation and cleanup. VCPs often work particularly well to facilitate the cleanup and re-use of “Brownfields,” former industrial or commercial sites where future use is affected by real or perceived environmental contamination.

With produced water volumes on the rise as a result of the growth in oil and natural gas production and various areas of the country experiencing water scarcity, states and stakeholders are increasingly looking for ways to reuse, recycle and beneficially use waters originating from the oil and gas industry. Two recent initiatives are likely to significantly advance policy decisions related to produced water management.

A recent US Court of Appeals decision could have broad implications for how federal wildlife agencies consider potential climate change impacts on species and their habitat. Pursuant to the Endangered Species Act (ESA), the US Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) must determine whether to list a species as endangered or threatened based on “the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A). Given the inherent uncertainties and limitations of forecasting specific population changes (or habitat changes) on the basis of climate change projections, the Services may find that potential climate change impacts on a species are too speculative to support a decision to list a species. The US Court of Appeals for the Ninth Circuit, however, recently overturned a FWS decision not to list a species on that basis. In reviewing FWS’s decision not to list the arctic grayling, a cold-water fish species found in Montana, a three-judge panel found that FWS failed to adequately explain why uncertainty regarding future impacts of climate change justified its conclusion that listing the species was not warranted.

In recent years there has been an explosion in the availability of small, low cost, hand held (or drone mounted) air quality monitoring devices or air sensors. Although the most likely near term applications may be community groups seeking information on potential industrial impacts, even individual consumers may have use for such devices to monitor the quality of indoor air. The biggest hurdle to the effectiveness, and eventual integration into the realm of regulatory compliance, of these devices is the lack accepted standards for evaluating the quality of the data they produce. What role will EPA play in that?

For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy.  Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate.  The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court.  See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Haw. Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018); Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018).

EPA has finalized a regulation you can live with, but someone dissatisfied with that result has sued the Agency.  Should you intervene to defend EPA’s action?  Is it worth it?  Does the court really pay attention to the arguments of an intervenor?  A recent decision by the D.C. Circuit in Masias v. EPA, No. 16-1314 (D.C. Cir. Oct. 19, 2018), illustrates the value of participation as a Respondent-Intervenor in these circumstances.