Avoiding A Water Crisis Similar to That of Flint Will Require Both Technical and Practical Effort

The problems with the quality of drinking water in Flint, Michigan, are not necessarily an isolated collection of failures. From a technical standpoint, the potential for lead leaching into drinking water systems in many places in this country is a real issue. That potential is compounded if we see a repeat of the range of bureaucratic failures that occurred in Flint.

The basic conditions that exist in Flint are not unique; they are prevalent at least in the older water systems of the Northeast and Midwest. (National Geographic). As that article points out, the potential for leaching of lead has been known for many years, and EPA enacted regulations twenty-five years ago intended to avoid the problem. However, the mere fact that applicable regulations are in place clearly is not sufficient if those regulations are not diligently enforced. And compliance must be checked by periodic inspection, monitoring, and testing. (Environmental Leader).

The problems in Flint were not inevitable, but were essentially caused and then exacerbated by the failures of some to comply with regulatory obligations and of others to enforce those requirements. Initially, the lead problem probably could have been avoided or at least substantially limited when the source of drinking water changed from Lake Heron to the Flint River if regulatory requirements had been followed to evaluate the potential for the river water to cause leaching. The fact that state and local officials apparently failed to anticipate potential problems was compounded by the failure of federal, state and local officials to respond to the problems quickly when they became apparent, or even to respond with genuine concern to initial complaints from City residents. Instead, those complaints were reviewed with something bordering on disdain. (New York Times). While the response to known or suspected problems presumably would not have prevented the initial leaching, a prompt and substantive response would have prevented lead exposures from occurring for so long a period of time, especially for the most at-risk residents, the children. Indeed, State officials were providing their employees in Flint with bottled water for several months before publicly acknowledging the problem last October. (CBS and ABC).

Conditions similar to that in Flint are present in many places, but so are the protections, if government observes and follows them. The ultimate fix – that of removing all lead pipe from these systems – is extraordinarily expensive and probably unrealistic. However, applicable rules do require steps that should be taken and which can be expected to prevent similar problems at manageable cost. What Flint demonstrates is that at all levels – local, state and federal – the requirements of practical safeguards were simply not appreciated or followed.

 

Some Things Upcoming in 2016

As the New Year begins, a number of issues will compete for attention from Congress and the courts, and we may even get some final determinations about matters that have been long simmering. Much of the substantive work of the Obama Administration has been put into place and is currently subject to various challenges. Many of these will either be decided or will progress substantially during the coming year. Nonetheless, EPA has proposed a full agenda of rulemaking activities for 2016, including both projected notices of proposed rulemaking and publication of final rules for a wide variety of areas that it regulates. (OMB Fall 2015 EPA Rule List see also EPA Regulatory Development Tracker). Among these will include proposals for final rules for things such as standards for management of hazardous waste pharmaceuticals, changes to the hazardous waste generator rules, and a NESHAP for certain industrial commercial institutional boilers.

From an enforcement standpoint, EPA has indicated in its Biennial National Program Manager Guidance and its National Enforcement Initiatives that it will be focusing on several specific areas in the various media that it regulates. Within its national enforcement agenda we apparently will see some focus on areas including: large air emission sources, energy extraction, minerals processing, and animal waste management.

Much will also be going on in the courts as various EPA final regulations have been challenged and we will see those challenges progress. This involves a long list of regulations, but perhaps some of the most significant will be challenges to the Administration’s Clean Power Rule, the Waters of the United States Rule, and the Mercury and Air Toxics Rule. Regarding the Clean Power or Carbon Rule addressing carbon emissions from power plants, this is pending and is subject to a briefing schedule initially on the issue of whether to grant a stay of the rule pending further litigation. The D.C. Circuit set a briefing agenda and apparently oral arguments will be scheduled during the first few weeks of the new year. (Washington Examiner). A stay has been granted by the Sixth Circuit with respect to the Waters of the U.S. Rule (WOTUS) and EPA has issued a statement indicating that it will comply with the stay and, in the interim, will administer the wetlands protection programs along with the Corps of Engineers using its previous approach interpreting existing regulations in accordance with its view of the relevant case law. (EPA Clean Water Rule litigation statement).

The status of the Mercury and Air Toxics Rule appears to be that the rule can be implemented even though EPA must propose certain changes or provide additional substantiation for the rule. The Supreme Court overturned the rule on the basis that the agency had not taken into account economic factors that might tend to make the rule untenable as a result of excess cost of compliance. (Michigan v. EPA). Despite this ruling, the D.C. Circuit refused to grant a stay of the rule while EPA seeks to evaluate the economic issues identified by the Supreme Court. (Utility Dive). The EPA has issued some updated information more recently intended to address the Supreme Court’s concerns. (EPA Mercury Air Toxics Site).

Congress will continue in its collective efforts to undo much of the regulatory agenda put in place by the Administration. Apparently this includes efforts with respect to the carbon (clean power) rule, efforts to defund implementation of the Clean Water or Waters of the U.S. rule and various efforts intended to limit or untrack the Administration’s implementation of the Global Warming Summit held recently in Paris. There will also be an effort to enact legislation to change the method of regulation of coal combustion residuals. That rule, which became effective in the fall, has also been challenged in court.

To conclude on what may be considered a more positive note, Congress did agree to extend tax credits for alternative energy sources. As a result, the development of alternative domestic sources, primarily wind and solar, is now assured for the next five years. (Wall Street Journal) These credits have had some significant impact on the development of this type of power generation (The Hill and National Renewable Energy Laboratory) and would now appear that those sources will continue to develop and expand play an increasingly greater role in power production in the United States.

 

Climate Change: Nations United-Nations Divided?

The third global summit on climate change has begun its meetings in Paris. Unlike the two previous summits, in Kyoto (1997) and Copenhagen (2009), there is optimism that an agreement under the auspices of the United Nations might be reached. (Paris Deal Important First Step). This optimism apparently has its origin, in substantial part, based on an agreement between the United States and China, the two largest carbon pollution emitters in the world.

Yet, while the President may have made inroads to persuading China that emissions reductions are merited, and he has also put his own Clean Power Plan into regulations that may survive court challenge, he has been unsuccessful in pulling together a political majority that recognizes and seeks to act on issues related to climate change. The leadership in the House and the Senate are squarely opposed to any position that might affect U.S. industry or its economy. (The Hill). The House is scheduled to vote today on two joint resolutions to disapprove EPA regulations on emissions for new and existing electric power plants. (Majority Leader’s Floor Schedule). And last Friday, Senate Majority Leader McConell laid out a reminder that the Senate would certainly not go along with any treaty that may come out of the Paris conference. (Op-Ed). Indeed, the legal debate rages over to what extent any agreements made in Paris would become enforceable in the United States. (Washington Post).

This divide is not necessarily merely political, but it does reflect recent polling indicating the sharp party-line split over the climate debate. A Washington Post-ABC News Poll indicates that, while 8 in 10 persons identifying themselves as Democrats believe global warming is a serious problem, nearly 6 in 10 Republicans say it is not. And, of the latter group, apparently two-thirds think there is “a lot of disagreement” among scientists over the existence of global warming, or at least the likelihood that such warming is caused by human activity. [A January 2015 report from the Pew Research Center indicates that 87% of scientists connected to the American Association for the Advancement of Science believe that climate change is mostly due to human activity.] Interestingly, Post-ABC survey finds that the biggest partisan disagreements exist among those with more education with Democratic-leaning college grads 43 percentage points more likely than Americans who lean Republican to say scientists agree on global warming. [As a side note, this may dispel the perception that all liberal arts majors are Democrats.]

The likelihood of success in Paris seems greater than a translation of that success in the United States, and thus, at least within the U. S., the entire process may be doomed from the outset.

 

Climate Change and Creative Problem Solving

A story in the New York Times recently portrays the ice cap in Greenland as rapidly disappearing. (NYT). Indeed, the pictures are dramatic. The story is based on experiences and observations from scientists working in the area, and it tends to support similar claims made by researchers in recent years about changing conditions in Greenland. At the same time, those who deny that global warming is occurring, or at least that it is not significantly caused by human activity, have pointed to other reasons for the reduction in the ice cap there. (Junk Science) Thus, observations are made that this may be part of a recurring trend of expansion and contraction of the ice cap or the result of geothermal activity or, perhaps, for some other reason not caused by human activity. And, indeed, there are some legitimate points and for both sides as explained in a recent BBC summary of the global warming issues. (Guide to Climate Change)

Can both positions be embraced, more or less? It seems so, at least to the Governor of Alaska. Recently he was quoted in a BCC interview as noting that climate changes are significantly affecting living conditions for native Alaskans in remote villages, particularly in the arctic region where villages are being threatened by rising sea levels. This means that the State may be obliged to assist those villages including through relocation. How would he pay for this apparent result of global warming? Through additional drilling for oil and natural gas in Alaska. (BBC Interview)

An ironic circle of reasoning? You be the judge.

Sixth Circuit Issues Nationwide Stay of Clean Water Rule

The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the controversial EPA/Corps of Engineers Clean Water Rule which was effective August 28, 2015. A copy of the decision is HERE. Some 30 states, industry and environmental groups had petitions pending in a number of circuit courts and all were consolidated in the Sixth Circuit. In what appears to be an interesting ruling, the three judge panel essentially expressed a desire to have the rule fully litigated before enforcing it. According to the Court:

A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters. See 33 U.S.C. § 1251(b) (“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution.”).

However, the Court did not answer the question as to whether it had subject matter jurisdiction to stay the rule in the first place, but stated it still had authority to stay the rules pending resolution of the jurisdictional question. Briefing on that aspect is to begin shortly.

 

Flint Water System Troubles May Signal Numerous, Potentially Broad-Ranging Problems

For the City of Flint, Michigan, the immediate problem is that the water it provides its citizens is not safe to drink. For many other communities across the nation, the problem may be whether they can do the things necessary to avoid a similar fate.

On Thursday, October 1, local health officials in Flint declared a public health emergency warning that the City’s public water supply is causing elevated lead levels in children (Water Crisis in Flint). Residents were warned not to drink the water unless it has been filtered at the tap, and the State’s governor promised to provide $1 million for filters and for water testing in public schools. Even before the discovery of lead concentrations, the City’s water was found to contain high levels of E. coli and other harmful bacteria. The City’s efforts to control the bacteria using large amount of chlorine created dangerously high levels of trihalomethanes, a carcinogenic by-product of chlorine (NPR).

Some of Flint’s drinking water problems are the result of things that are specific to its situation, including the judgments and diligence of local and State governments. Other factors seem to be more broadbased and likely to present problems in varying degrees in other communities.

Certainly Flint has experienced the types of financial problems increasingly common in the aging factory communities of the Midwest. Unlike Detroit, Flint did not declare bankruptcy, but for almost three-and-one-half years it was under the control of an emergency financial manager appointed by Michigan’s Governor, with that arrangement ending only last April. Among other things, the manager balked at paying increasingly higher prices for water being provided by Detroit, Flint’s historic source of drinking water. Construction of a water line from Lake Huron offered the prospect of a less expensive source, but that line won’t be completed until mid-2016. Yet Flint decided to sever ties with the Detroit system in April, 2014, and replace it for the interim with water from the Flint River. We now know that the river water not only contains high levels of harmful bacteria, it is corrosive, causing lead to leach from joints in the piping system. Although the use of river water was approved by State officials, the many problems leading to the declaration of a health emergency force the conclusion that the idea was not thoroughly considered nor was it adequately monitored in the early days of implementation. This pattern seems to have continued with efforts to solve initial problems, such as the E. coli concentration, causing additional public health risks.

More generally, Flint’s situation may reflect problems that will soon face many other communities around the nation. While the financial problems experienced by both Flint and Detroit have a number of causes, an issue for both cities is the increasing expense of maintaining and operating aging water systems. These issues are not isolated or unique as many communities are facing similar problems with infrastructure and operating costs. A 2011 report by the American Water Works Association estimates that restoring existing water systems as they reach the end of their useful lives and expanding them to serve a growing population will cost at least $1 trillion over the next 25 years (Buried No Longer).

Providing funding for these costs will be a difficult task, but that is only a part of the problem. To avoid the problems facing the residents of Flint, governments, and private operators where they are involved, must do a better job of assessing the potential risks from particular sources of water and diligently monitoring the quality of the water provided to assure that public health is protected.

Update: Late Thursday, October 8, Michigan’s Governor Snyder announced his support for an interim solution that would reconnect Flint to the Detroit water system. The Governor will ask the legislature to provide most of the money needed to renew the connection and provide water through the middle of next year (Star Tribune).

Clean Power Rule Challenges Will Proceed Sooner or Later, But Its Goal May Already Be Close at Hand

Legal challenges filed almost immediately after President Obama announced the Clean Power Rule may be premature. That is what attorneys for EPA told the U.S. Court of Appeals for the District of Columbia Circuit recently in response to an action brought by West Virginia and several other states. The fundamental issue according to EPA attorneys is that a challenge is not ripe until the regulation is published in the Federal Register, and that may not occur for several weeks. (The Hill).

The particular issue raised by the petitioners is an effort to stay the effect of the Rule while the challenge is proceeding. As we have noticed previously, a failure to obtain a stay associated with a challenge to EPA’s Mercury and Air Toxics Standard (“MATS”) effectively resulted in substantial compliance with that rule during the COURSE OF lengthy litigation and before the Supreme Court invalidated MATS earlier this summer. As a practical matter, many power companies proceeded with actions necessary to comply with MATS, including the shutdown of some older power plants and a conversion from coal to natural gas for others. Indeed, the Governor of Michigan, the State that lead the challenge to MATS, announced earlier this week that the State will comply with the Clean Power Plan even though Michigan’s Attorney General is participating in the challenge led by West Virginia. (Michigan Stance Highlights Clean Power Plan Fray) EPA has indicated that publication of the Clean Power Rule in the Federal Register will occur in less than two months.

While challenges to the Clean Power Rule will certainly be pursued, the Rule’s goal of a substantial reduction in carbon emissions seems to be well along the way. This has apparently occurred primarily due to a substantial increase in the availability and use of natural gas resulting from the boom in hydraulic fracturing, particularly with respect to shale gas. Recent articles in Forbes (Fracking is Our Clean Power Plan) and (Greenhouse Gas Emissions Plunge) note the dramatic increase in the availability of fracked natural gas and that this has been a key to reducing carbon emissions in the U.S. to their lowest levels since 1988. Indeed, the argument is made that the goal set out in the Clean Power Plan for a 32% reduction in carbon emissions from 2005 levels by 2030, is substantially at hand. The indications are that there has already been approximately 25% reduction since 2007, deemed attributable to fracking specifically and the greater availability of natural gas generally. Viewed from a somewhat different prospective, by 2012, the United States had achieved approximately 70% of the CO2 emissions reductions targeted under the Kyoto Agreement.

While the coal industry has focused on what it refers as to as a regulatory “war on coal,” the dramatic shift in the source of energy for power plants appears, at least to this point, to be primarily due to the availability of relatively cheap natural gas. For example, electricity generated from coal-fired plants declined approximately 25% from 2007 to 2012 while generation from natural gas-fired plants increased by approximately 35%. While it is true that power generation from renewable sources has also increased, to date, the real shift appears to be to natural gas.

With this in mind, it bears noting that the Clean Power Plan will likely have an adverse impact on the use of natural gas for power generation. The Plan places a significant emphasis on renewable sources and away from those which generate CO2, including natural gas. Thus, and assuming that the Rule is substantially upheld in its present form, the question may become one of the significance of the individual state emissions budgets and how they might impact total CO2 emissions regardless of whether the source is coal or natural gas.

 

Georgia EPD Proposing New Requirements on New Inert Waste Landfill Operations

Georgia EPD is proposing to require any new inert waste landfill operations to obtain an inert waste landfill solid waste handling permit. It also provides a transition period to allow existing inert waste landfill operations to comply with these new requirements or close under the existing inert waste landfill permit by rule closure criteria.

EPD will be requiring specific design and operational criteria, and will impose a solid waste handling permit process to replace the existing notification of permit by rule (PBR) operations.

 

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.

Georgia Department of Revenue Proposes Conservation Tax Credit Rule Changes

The Georgia Department of Revenue Income is proposing a change to the Tax Division Rule on conservation tax credits. Interested parties seeking to comment on the proposed Rule should review the notice for further guidance. The notice and an exact copy and synopsis of the proposed Rule may be found on the Department’s website at:

https://etax.dor.ga.gov/inctax/newregs/10-16-12__Rule_560-7-8-_50_Conservation_Tax_Credit.pdf

 

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.

Land Protection Brand of Georgia EPD Organizational Changes

The Land Protection Branch of Georgia EPD recently announced several organizational changes. The reorganization became effective on August 1, 2012.

Included among the Branch reorganization are:

• The position of Assistant Branch Chief has been established and is held by Jeff Cown

• A new Special Projects role for data management and work process improvements is held by Renee Hudson Goodley

• Response and Remediation Program now includes the Brownfields Unit. Derrick Williams has assumed the role of Program Manager, moving from the Underground Storage Tank Program

• The new Program Manager for the Underground Storage Tank Program is Lon Revall

• Acting Manager of the Solid Waste Program, pending selection of a permanent program manager, is Melanie Henry

• Jan Simmons heads the Hazardous Waste Management Program, under which the Hazardous Waste Compliance Program and the Lead and Asbestos Unit have been consolidated

• Jim Brown leads the Hazardous Waste Corrective Action Program, and part of the Hazardous Waste Management remediation projects and associated staff now fall under that Program

• The Waste Reduction and Scrap Tire Units are being consolidated into the Solid Waste

Program.

 

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.