Georgia Governor Expected to Sign Overhaul to Soil and Water Commission (HB 397)

On Friday, March 27, 2015 the Georgia legislature passed HB 397, overhauling the State Soil and Water Conservation Commission (“Commission“). HB 397 is intended to curb the Commission’s independence and streamline its regulations. The bill transforms the Commission from an independent state agency to one within the umbrella and oversight of the Department of Agriculture. One state representative provides that the bill is expected to save the state up to $300,000. See Michael Caldwell, Legislative Tracker, (Mar. 9, 2015).

Final passage of the bill comes days after Brent Dykes, Executive Director for the Commission, gets axed. In a statement to the Atlanta Journal Constitution (“AJC“) Dykes stated, “[i]t has become increasingly evident that [it] is time for someone else to lead this organization; someone who has the full support of the current state board.” (emphasis added). Dykes leaves after having served within the Commission for 18 years. See Kristina Torres, Senate passes bill affecting state agency that just fired director, AJC, here (Mar. 26, 2015).

Pursuant to HB 397, Governor Nathan Deal will make appointments to the commission, with one member coming from each of the five soil and water conservation districts. Further, the reorganized commission will tap into the expertise of the University of Georgia’s College of Agricultural and Environmental Sciences through the appointment of the college’s Dean, Director, and two Associate Deans to advisory roles. Additionally, advisors to the Commission will include the Commissioner of Natural Resources, Commissioner of Agriculture, Director of State Forestry, and others.

The bill removes the Commission’s power to award grants of up to 40% of the cost of obtaining a permit under the Clean Water Act for the construction of new public water supply reservoirs. Additionally, the bill creates an Erosion and Sediment Control Overview Council (“Council“) to approve the Manual for Erosion and Sediment Control in Georgia (“Manual” or “Green Book“). The Green Book is created to provide guidance on best practices for protecting against erosion and sedimentation. The Council will be comprised of two legislators; members of the Environmental Protection Division of the Department of Natural Resources, Department of Transportation, and the State Road and Tollway Authority; representatives from the highway contracting industry and the electric utility industry; and a privately employed engineer.

Not all were on board with the bill, however. Organizations such as the Georgia Water Coalition (“GWC“) strongly opposed the bill, stating that it “pulls the commission into the Governor’s orbit by radically changing the composition of the commission’s primary governing board.” The GWC further echoed concerns that the council was comprised of “Georgia Department of Transportation officials with potential conflicts of interest. . .while failing to actually resolve the confusion over which edition of the Green Book design professionals and road builders should use to keep dirt out of our waterways.” Georgia Water Coalition, (Mar. 30, 2015).

HB 397 is currently before the Governor for signing and is expected to obtain final approval in the upcoming weeks.

Obama Administration Anticipates Movement in Doomsday Clock

Last week the Bulletin of the Atomic Scientists (BAS) moved the minute hand on the Doomsday Clock two minutes closer to midnight. Advancement of the clock hand symbolizes experts’ concerns on the threat of global catastrophe. Kennette Benedict, executive director of the BAS warned that countries emitting carbon dioxide and other gases are transforming the Earth’s climate in a dangerous way, leaving millions vulnerable to rising sea levels, famines and killer storms. The executive director, however, emphasized that BAS’ message was not one of hopelessness, indicating that it is not too late to take action but that real steps need to be taken in order to avert abysmal catastrophe. See Rachel Reilly, Victoria Woollaston, and Jonathan O’Callaghan, Doomsday Clock reads 11.57: Atomic scientists move minute hand two minutes forward – and say we are at closest point to disaster in decades, Daily Mail (Jan. 23, 2015), available here.

In anticipation of this update, the Obama Administration announced on January 14, 2015, its renewed commitment to the reduction of methane emissions affecting global climate change. The announcement comes as oil production reaches its highest level in nearly 30 years and the U.S. advances in the world market to become the world’s largest natural gas producer.

In its press release, the Administration announced a new goal to cut methane emissions in the oil and gas sectors by 2025 to 40-50% below those recorded in 2012. To accomplish this mission: (1) the EPA will develop new guidelines to assist states in the reduction of ozone-forming pollutants from oil and gas systems in states along the Ozone Transport Region; (2) the EPA plans to continue promotion of transparency and accountability in the Greenhouse Gas Reporting Program; (3) the Department of Interior’s Bureau of Land Management (BLM) will update standards relating to oil and gas associated methane; (4) the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) will propose natural gas pipeline safety standards; and (5) the President’s budget for Fiscal Year 2016 will propose $15 million in funding for the Department of Energy (DOE) towards the development of reduction focused technology and another $10 million to a DOE program enhancing the quantification of emissions from natural gas infrastructure for inclusion in the national Greenhouse Gas Inventory. Additionally, the DOE will focus on modernizing natural gas transmission and distribution.

Experts now await release of the Quadrennial Energy Review (QER) expected to be unveiled in the upcoming weeks. The much anticipated QER will shed light on policy recommendations and proposals relating to the modernization of energy transmission, storage, and distribution infrastructure. See Press Release here.

EPA Re-Defines “Solid Waste”

On December 10, 2014, the EPA administrator published its latest version on a rule revising recycling related provisions under the definition of solid waste rule (DSW rule). See 40 CFR Parts 260 and 261, Docket No. EPA-HQ-RCRA-2010-0742 (Dec. 10, 2014). The revisions were made to help alleviate concerns regarding disproportionate health and environmental risks suffered by low income communities buttressing local recycling facilities.

These new revisions are predicted to make it increasingly difficult for facilities who purport to be recycling to illegally dispose of hazardous materials. See Mike McLaughlin, Fact Sheet: 2014 DSW Final Rule, American Bar Association (Dec. 18, 2014).

Winter Draws Mixed Opinions Regarding Fracking

Fracking received much attention and debate in the fourth quarter. Fracking is the process of injecting large amounts of water, sand and chemicals into the ground at high pressures in order to release oil and natural gas into underground rock formations.

On December 17, 2014, New York Governor Andrew Cuomo announced his administration’s plan to ban fracking due to health concerns. His decision follows a presentation by New York state health commissioner finding “significant public health risks” linked to fracking. See Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, The New York Times (Dec. 17, 2014).

Contrasting New York’s decision, North Carolina’s Oil and Gas Rules and Review Commission approved new fracking rules and the state legislature is expected to lift North Carolina’s fracking moratorium. See John Murawski, NC Rules Review Commission approves fracking standards, News & Observer (Dec. 17, 2014).

A long awaited study on the risks posed by fracking is estimated to be released by the EPA in early 2015. See Letter from United States Environmental Protection Agency, Region 8, Philip S. Strobel, Acting Director, NEPA Compliance and Review, Office of Ecosystems Protection and Remediation, Ref. No. 8EPR-N (Oct. 17, 2014) (on file with EPA).

New Year Brings New Coal Ash Regulations and New Legislative Proposals

December 19, 2014 marked the deadline for the Environmental Protection Agency (EPA) to announce its final decision regarding a new regulatory scheme for coal ash disposal (Coal Combustion Residuals or CCR). The new regulations are to focus on the disposal of coal ash.

The pressure for new regulations began mounting after the rupture of a Tennessee power plant in 2008 which sent over 1 billion gallons of coal ash into nearby Tennessee rivers. Subsequently, on February 2, 2014, a Duke Energy plant released approximately 39,000 tons of coal ash into the Dan River in North Carolina.

During the lead up to the EPA decision, interest groups have been battling over whether coal ash should be categorized as solid non-hazardous waste or hazardous material. This ongoing battle will likely foreshadow legislative arguments we can expect in 2015.

In the past, Representative, David McKinley of West Virginia and Senator John Hoeven of North Dakota both have been active in introducing legislation allowing states to regulate coal ash as non-hazardous waste. Additionally, Senator James Inhofe, the incoming chairman of the Senate Committee on Environment and Public Works has stated that states have “responsibly and effectively managed coal ash” without federal intervention.

Further, Inhofe has stated, “[i]n the new Congress, my colleagues and I will intently review the impacts this rule could have to our economy and electricity reliability as well as highlight how states are leading the way on properly disposing and recycling coal ash.” See Sean Cockerham, EPA rules on coal ash may disappoint environmentalists, buoy industry, ColumbusLedger-Enquirer (Dec. 17, 2014). Following his re-election, Majority leader Mitch McConnell stated that he feels a “deep responsibility” to stop the EPA from regulating carbon emissions at coal-burning power plants. McConnell said his top priority is “to try to do whatever I can to get the EPA reined in.” See Sam Youngman, McConnell: If Rand Paul runs for president, ‘he’ll be able to count on me’, Lexington Herald-Leader (Nov. 6, 2014).

EPA Releases Annual Environmental Enforcement Results

December 18, 2014, marked the release of the U.S. Environmental Protection Agency’s (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014 Annual Environmental Enforcement Results (Dec. 18, 2014). According to the EPA, its enforcement actions in 2014 required businesses across the country to invest more than $9.7 billion in regulatory compliance and equipment. Additionally, EPA collected a total of $163 million in combined federal administrative, civil judicial penalties, and criminal fines. Annual results showed a reduction of 141 million pounds of air pollutants, including 6.7 million pounds of air toxins, 337 million pounds of water pollutants, and 856 million cubic yards of contaminated water clean-up.

The release highlights EPA’s growing focus on enforcement of larger cases with greater impact. In the first of three notably large cases this year, EPA obtained a large settlement with the number one metallurgical coal supplier in the United States. Pursuant to the settlement agreement the company will invest $200 million to install and operate wastewater treatment facilities near coal mining operations in five states. Additionally, the company agreed to provide system-wide upgrades to assist in the reduction of coal mine pollution.

In November, the EPA reached a settlement agreement with two major auto manufacturers for an estimated $100 million for violations of the Clean Air Act based on the sale of more than 1 million vehicles with emissions collectively totaling 4.75 million metric tons of greenhouse gases.

On November 10, 2014, EPA obtained a settlement whereby the company agreed to pay more than $5.15 billion into a litigation trust (with $4.475 billion going to the trust’s environmental beneficiaries and $605 million going to its torts beneficiaries). According to the EPA, this case allowed EPA to close the year with its largest recovery for the cleanup of environmental contamination in history and the largest bankruptcy award the EPA has ever received for environmental claims and liabilities.

Georgia EPD Appoints New Brownfield Program Coordinator

Beth Blalock has been named the new Brownfield Coordinator for the Georgia Environmental Protection Division, replacing Madeleine Kellam, who has led the brownfield program since its inception and will retire at the end of 2014.

Ms. Blalock is an environmental attorney (UGA, 2003), with a background in environmental and land use law. Her prior experience includes approximately five years as general counsel for the Georgia Conservancy and, previously, with King and Spalding. Beth will begin work with the Georgia EPD within the coming weeks, allowing for at least a two-month transition period, during which she can work directly with Madeleine before her retirement.

Georgia EPD Changes Marsh Buffer Policy

On April 22, Judson Turner, director of Georgia’s Environmental Protection Division, issued a memorandum that changes how the agency and local government development authorities are to measure vegetated buffer requirements along coastal marshland.

The Georgia Erosion and Sedimentation Control Act requires a 25 foot vegetated buffer adjacent to waters of the state, in which no development or impervious surfaces may be located.

Since at least 2004, EPD has by policy measured the buffer along marshes from the jurisdictional line set by the Coastal Marshland Protection Act. With the policy change, the buffer zone will now be measured from the point of wrested vegetation, or the point at which wave or tidal action creates a sharp line between water flow and growing vegetation.

Environmental organizations already have commented that the policy change will effectively eliminate the buffer requirement along marshes and have vowed to seek a reversal of the policy change through legislation, litigation, or otherwise.

Director Turner stated publicly that the intention of the policy change is to ease the burden on local development authorities, which have reported difficulties in implementing the prior policy.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

EPA, Army Corps of Engineers Propose Rule Clarifying Clean Water Act Jurisdiction

On March 25, the US Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule to clarify Clean Water Act jurisdiction over streams and wetlands by re-defining “Waters of the United States” in light of a series of Supreme Court decisions wrestling with the issue of whether a particular water body (e.g., “isolated wetlands,” man-made ditches and the like) were subject to regulation under the Clean Water Act.

The proposed rule seeks to clarify regulation over upstream waters and to increase efficiency in determining coverage of the Clean Water Act (“jurisdictional determinations”). A public comment period will run for 90 days following publication of the proposed rule.

Under the proposed rule, most seasonal and rain-dependent streams, and wetlands near rivers and streams will be protected. Jurisdiction over other types of waters be evaluated by a case specific analysis of whether the connection is or is not significant, and constituents now have opportunity to comment on the Act’s application to geographically unique waters, and to recommend the addition of categories of waters that should be regulated without case specific analysis.

For a copy of the proposed rule and other information, please visit the Environmental Protection Agency.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

EPA Announces Regional Administrator for Region 4 Office in Atlanta

On January 14, the U.S. Environmental Protection Agency announced that Heather McTeer Toney has been appointed by President Obama as regional administrator for EPA’s regional office in Atlanta.

Ms. McTeer Toney was the first African-American and first female to serve as the Mayor of Greenville, Mississippi, holding that post from 2004-2012. Thereafter, she served as the Executive Director of the Center for Excellence in Student Learning at Mississippi Valley State University, and as the principal attorney at Heather McTeer, PLLC.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.