Environmental update

Environmental update

June 19, 2019 | By Andrew Skroback in Washington, DC

US economic growth is causing carbon dioxide emissions from sources like factories, planes and trucks to surge.

US carbon dioxide emissions increased by 3.4% in 2018, the biggest increase in eight years, according to research firm The Rhodium Group.

Although fossil-fuel emissions in the US have fallen significantly since 2005, the reductions from natural gas and renewable energy displacing coal-fired power were not enough to offset rising emissions in other parts of the economy.

The Rhodium Group estimates that the industrial sector is on track to become the second-biggest source of emissions in California by 2020, behind only transportation, and the biggest source in Texas by 2022.

Waters of the United States

For the foreseeable future, the regulated community will face a patchwork of different standards by which the government will issue jurisdictional findings for water bodies under the Clean Water Act. The standards vary depending on where a project is located.

The Environmental Protection Agency and the Army Corps of Engineers moved early in the Trump administration to suspend implementation of a regulatory definition of “waters of the United States” under the Clean Water Act that was adopted by those agencies in 2015. Enforcement of this broader definition has been suspended while the agencies finalize a replacement to narrow the scope of the 2015 Obama-era policy.

The Trump administration is pursuing a two-step approach, first by repealing the existing definition and then by replacing it with a more limited standard for when permits are required under the Clean Water Act to build.

The area is now mired in litigation. Some federal district courts have ordered the two agencies not to delay enforcement of the earlier definition, while others have issued orders barring agency enforcement of the prior standard while its legality is litigated.

This has left 22 states subject to the Obama-era rule and 28 exempted from it.

The US Department of Justice initially appealed the decisions ordering no delay in enforcement, but then it changed course in March. It withdrew the appeals it had filed in various courts and urged other courts to dismiss the no-delay cases as moot.

The move guarantees that the law will continue to be implemented differently state by state until the agencies come up with a new definition that survives another round of inevitable court challenges.

While the agencies maintain some discretion on which waters they will subject to Clean Water Act protections even in the 22 states operating under the broader jurisdictional rule, the use of agency discretion to go around the standard may lead to further litigation.

Dropping the appeals could indicate that the agencies are preparing to finalize their long-pending formal repeal of the 2015 rule, but the timing remains uncertain despite EPA’s desire to see it done in 2019.

EPA and the Army Corps have proposed a replacement that would significantly narrow the number of water bodies subject to Clean Water Act protection.

The proposal would limit Clean Water Act jurisdiction to permanent or intermittent water bodies with a surface connection to “traditional navigable waters” during a “typical year.” It would exclude ephemeral streams, waters with only sub-surface or otherwise indirect connections to navigable waterways as well as wetlands that do not directly touch other jurisdictional waters. It would also abandon a long-standing policy that any interstate water is considered jurisdictional without regard to whether it satisfies other tests.

States

A number of states are using state authority to block the impact of certain federal environmental regulatory rollbacks, including by considering new state-level regulations that will impose pollution control requirements stricter than federal requirements.

For example, California recently revised its state-level regulatory definitions for water bodies that will dull the impact of EPA and the Army Corps adopting narrower Clean Water Act jurisdictional standards within the state.

The California Water Resources Control Board approved on April 2 a new definition of what qualifies as regulated “wetlands” and new rules for discharging dredge and fill materials into state waters.

The “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” consists of four major elements. One is a wetland definition. Next is a framework for determining whether a feature that meets the wetland definition is a water of the state. Third is wetland delineation procedures. Last are procedures for the submittal, review and approval of applications for water quality certifications and waste discharge requirements for dredge or fill activities.

The board’s stricter new wetlands permitting program will effectively block the Trump administration’s plan to narrow the Clean Water Act jurisdiction standard in California.

Greater sage grouse

The US Bureau of Land Management finalized a plan to ease restrictions on oil and gas drilling on lands that are home to the greater sage grouse.

The Obama administration had previously confirmed 11 state land-use plans for the sage grouse in 2015, but the Department of Interior began a new internal review of those plans in 2017.

The Trump administration finalized revisions to Obama-era greater sage grouse conservation plans in early March. They include a number of provisions that could allow for oil and gas drilling, mining activity and other development near sensitive grouse habitat.

Specifically, the Department of Interior released records of decision, or RODs, based on six environmental impact statements and resource management plans that were revised last year that cover grouse plans in seven Western states.

The plans added certain exemptions from and waivers of mandates in the 2015 plans regarding compensatory mitigation, no-surface occupancy buffers around breeding grounds and seasonal restrictions near bird habitats.

Significantly, the RODs remove mandatory compensatory mitigation for impacts to grouse habitat. The original plans required that disturbance in grouse habitat had to be mitigated to a standard of “no net loss” of habitat. Going forward, BLM will consider compensatory mitigation only when offered voluntarily by a project or if otherwise required by law.

The plans remove most of the 10 million acres of sagebrush focal areas, which the prior plans had identified as critical habitat, leaving just 1.8 million acres of such protected areas.

The decision received bipartisan support from governors in those states where the bird is most common: Wyoming, Nevada, California, Idaho, Oregon, Utah and Colorado.

Critics of the move argue that the amended plans will further disrupt the birds’ sagebrush steppe habitat and endanger its survival.

The original plans were considered strong enough that the US Fish and Wildlife Service determined in 2015 that sage grouse did not require protection under the Endangered Species Act, a fact that critics of the revised plans argue is no longer the case.

Various environmental groups are considering legal challenges to the final revised plans.

PFAS

EPA revealed an “action plan” in February to address concerns over contamination from per- and polyfluoroalkyl substances, or PFAS (pronounced “PeeFAS”), emerging chemicals of concern for drinking water in a number of areas around the nation.

The plan provides for more research and initiates some water and waste regulatory steps, but does not set strict policy limits. However, the step could be a first toward nationwide drinking water standards for the chemicals, though not without further delay.

Fluorinated chemicals are commonly added to a wide variety of consumer products to make them non-stick, waterproof, and stain-resistant. These include carpets and upholstery, waterproof apparel, floor waxes, non-stick cookware, camping gear, fast-food wrappers, cleaners, dental floss, and firefighting foams for putting out fuel fires.

EPA says that the chemicals, which persist for a long time in the environment and build up in people’s bodies, can cause reproductive and developmental, liver, kidney and immune system problems with sufficient exposure.

EPA Administrator Andrew Wheeler confirmed that the agency is moving forward with a process that could eventually set a maximum contaminant levels for the substances in drinking water.

EPA confirmed the regulatory process for listing two common PFAS as hazardous waste. The goal is to propose a Safe Drinking Water Act regulatory determination for the two most common PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), by the end of 2019. This is a necessary step before a maximum contaminant level (MCL) could be set.

The plan also calls for more monitoring of PFAS in water supplies.

The eventual setting of drinking water standards and listing of PFAS as hazardous substances regulated under CERCLA and RCRA would probably lead to significant cleanup liability for responsible parties at sites across the country.

It could even result in responsible parties having to conduct additional remediation at sites where cleanups were previously determined to be complete. Cleanup agreements with regulators regularly include “reopener” clauses to require remediation if the facts on which the resolution was reached change and the cleanup is determined not to protect human health and the environment.

EPA has begun to sample for PFAS at Superfund sites even before it decides whether to list the chemicals as regulated hazardous substances.

In late April, EPA issued long-delayed draft interim guidelines for cleaning up groundwater contaminated with PFAS at levels stricter than what the US Department of Defense has advocated, but not as strict as those being set in some states.

The draft guidance recommends an initial cleanup goal should be set at 70 parts per trillion for PFOA and PFOS for groundwater that is a potential or current source of drinking water, provided no state or tribal drinking water or other state standards exist.

Critics argue that the current draft fails to clarify whether EPA would require remediation of groundwater that states have designated as a future source of drinking water, but where the water is currently not being used.

The draft does not designate PFAS chemicals as hazardous substances under the Superfund law.

The agency proposed that 40 parts per trillion for PFOA and PFOS should be used as a “screening level” to identify sites with groundwater contamination that may require further investigation.

Whatever EPA does at a national level, a number of states are entering the regulatory field as well. For example, New Jersey regulators set health-based groundwater cleanup standards for PFAS at much stricter levels than those currently being considered by EPA. The state proposed groundwater quality standards of 14 parts per trillion for PFOA and 13 parts per trillion for PFOS, significantly lower than EPA proposed.

EPA regional reorganization

EPA has begun a major reorganization of its regional offices that includes significant staff reassignments to new positions.

The plan is reportedly to reorganize regional offices to mirror the divisions found at EPA headquarters.

The realignment appears likely to significantly effect a number of regional offices that have traditionally run their enforcement activities out of program-specific offices, rather than through a dedicated enforcement division. These include as air, waste, water and toxics.