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.

Georgia General Assembly Ends Water and Land Conservation Tax Credits

At the end of its recent session, the Georgia General Assembly passed HB 464 by unanimous votes to cap the land conservation tax credit at $30 million for 2016 and then eliminate it altogether at the end of 2016. HB 464 also repeals the tax credits for water conservation facilities and ending groundwater usage, effective at the end of 2016.

The original bill, introduced by Representative Bruce Williamson (R-115; Monroe), did not address the land conservation tax credit. Section 1 of the original bill repeals the tax credit for water conservation facilities; Section 2 ends the tax credit for shifting from ground-water usage; both repeals are effective at the end of 2016. The House Ways and Means Committee added Section 3 to the bill which caps and sunsets the land conservation tax credit at the end of 2016.

The bill was sent to the Governor on April 7, but so far, he has not signed it.

Supreme Court Upholds EPA Rule Limiting Cross-State Pollution

The Supreme Court handed the Obama administration a victory on Tuesday, April 29, 2014, when it injected new life into an Environmental Protection Agency rule targeting air pollution that drifts across state borders.

EPA struggled for many years to carry out a Clean Air Act directive to protect downwind states from pollution generated in other states (the “Good Neighbor Provision”).  In 2011, EPA enacted a set of rules regulating pollutants generated from coal-fired plants that drift across state lines (the “Transport Rule”).  The Transport Rule established a program for allocation of emission reductions among upwind states to improve air quality in polluted downwind areas.  The Transport Rule applies in large part to pollutants generated in 28 Midwestern and Appalachian states and drifting to the East Coast.  A coalition of industry groups and upwind states challenged the EPA’s Transport Rule and prevailed in the lower courts.

In a 6-to-2 ruling, the Supreme Court reversed the D.C. Circuit Court and upheld EPA’s authority to regulate air pollutants that drift across state lines.  The Court noted that the Clean Air Act’s Good Neighbor Provision delegates authority to EPA to determine how to allocate among multiple contributing upwind states responsibility for a downwind state’s pollution.  The Court concluded that EPA’s Transport Rule was a permissible construction of the Clear Air Act’s Good Neighbor Provision. The Court further held that eliminating amounts of pollution that could cost-effectively be reduced was an efficient and equitable solution to the allocation problem Congress’s Good Neighbor Provision required EPA to address.

EPA administrator Gina McCarthy hailed the decision as a “resounding victory for public health and a key component of EPA’s efforts to make sure all Americans have clean air to breath.”  Opponents of the Transport Rule denounced the decision and believe EPA’s application and enforcement of the Transport Rule will drive up energy costs and will threaten energy sector jobs.

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.

Approaching Compliance Dates: Stationary Engines

Compliance dates for the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), 40 CFR 63 Subpart ZZZZ, for existing sources are soon approaching. In 2010, EPA expanded the applicability of this rule to control hazardous air emissions not only from new engines but also existing engines, regardless of whether those engines are located at major source or area (minor) sources of HAPs.

Types of engines covered include non-emergency engines used for power generation (including peak shaving), emergency backup power generators, and emergency fire pumps.  Many of these engines are exempt from air quality permitting but are still subject to the RICE NESHAP.

Diesel fueled engines have a compliance date of May 3, 2013, and natural gas and gasoline fueled engines have a compliance date of October 19, 2013.

Key requirements of the RICE NESHAP include:

• Emissions control requirements for certain types of non-emergency engines.

• Operation and maintenance (O&M) and work practice requirements for emergency engines and certain types of non-emergency engines.

• Limits on non-emergency running hours for emergency engines.

• Record keeping requirements.

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.

D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule

On August 21, the D.C. Circuit Court of Appeals, in EME Homer City Generation, L.P v. EPA, F.3d (D. C. Cir. 2012), vacated the Cross-State Air Pollution Rule (CSAPR, also known as the “Transport Rule”) and remanded the rulemaking proceeding to EPA. The D.C. Circuit directed EPA to continue to administer the Clean Air Interstate Rule (CAIR) “pending implementation of a valid replacement”.

Judge Brett Kavanagh wrote for the Court:

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

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.