New Rule Reduces Scope of Clean Water Act

January 27, 2020
At an event at the National Association of Home Builders International Builders’ Show in Las Vegas, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced a new, clear definition for “waters of the United States.” With the Navigable Waters Protection Rule, the EPA and the Department of the Army delivered on President Trump’s promise to finalize a revised definition for waters of the United States (WOTUS) that the Administration says will protect the nation’s navigable waters from pollution and result in economic growth across the country.
“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said EPA Administrator Andrew Wheeler. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “Our rule takes a common-sense approach to implementation to eliminate that confusion. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our Nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our Nation and the world, and our businesses to continue thriving.”
For the first time, EPA and the Army are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. According to EPA, the rule ensures that America’s water protections – among the best in the world – remain strong, while giving states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.  Discharges to waterways that are no longer classified as WOTUS will no longer be subject to federal NPDES permits.
The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters. These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.
This final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
According to EPA, the agencies’ Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.
The EPA’s Science Advisory Board consisting mostly of scientists appointed by this administration warned the agency that this proposed rule was inconsistent with established science. An overwhelming majority of the 626,075 comments received by EPA opposed the rule. Americans across the country voiced concerns about EPA’s proposed draft including state floodplain managers and wetland managers, state wildlife agencies and international councils, state environmental agencies, associations representing family commercial fishing businesses, several fly-fishing related businesses, river guides and paddling outfitters, outdoor apparel company Patagonia, outdoor recreational enthusiasts represented by several organizations, 59 craft breweries from across the country, twelve scientific societies that represent more than 200,000 scientists, numerous associations representing public and children’s health advocates, cities and counties, small and family farmers, environmental law professors, faith organizations, and conservation organizations too numerous to count.
Public Employees for Environmental Responsibility claimed that Administrator Andrew Wheeler, Assistant Administrator David Ross, General Counsel Matt Leopold, Principal Deputy General Counsel David Fotoui, Senior Science Advisor Owen McDonough, and other top officials in EPA’s Office of Water, took direct action to prevent the agency’s best scientific research and its experts from contributing to the new definition of waters of the U.S. (WOTUS) in blatant violation of EPA’s Scientific Integrity Policy by –
  • Directing expert staff to refrain from submitting comments that could be part of the formal administrative record;
  • Blocking use of scientific information to inform policy; and
  • Publicly mischaracterized scientific content.
“So much for the `crystal clear’ water President Trump promised. You don’t make America great by polluting our drinking water supplies, making our beaches unfit for swimming, and increasing flood risk. This effort neglects established science and poses substantial new risks to people’s health and the environment. We will do all we can to fight this attack on clean water. We will not let it stand,” said Gina McCarthy, president of the National Resources Defense Council.
More information, including a pre-publication version of the Federal Register notice and fact sheets, is available at:  See a diagram that illustrates what waterways will and will not be classified as waters of the United States.
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Lab Director Jailed for Falsifying Lab Results
A Greenville, Mississippi lab operator hired to test water samples to help ensure water quality for dozens of towns throughout the Mississippi Delta was sentenced to 18 months in prison on Thursday for submitting false statements and lab results to the Mississippi Department of Environmental Quality. William C. Lamar, U.S. Attorney for the Northern District of Mississippi, together with Charles Carfagno, Acting Special Agent in Charge of the Environmental Protection Agency’s criminal enforcement program in the Southeast, announced the sentence.
John H. Couey, 44, of Greenville was sentenced by Senior U.S. District Judge Glen Davidson, in Oxford following a guilty plea to five felony counts of knowingly making false material statements in documents required to be maintained under the Clean Water Act.
Couey is the owner and lab director of Davis Research, Inc., an environmental analytical laboratory located in Avon, Mississippi. Davis Research performed analytical testing services for more than 100 cities, towns, state and federal agencies, and businesses in the Mississippi Delta. Couey, as lab director, falsified over 1000 laboratory reports that were submitted to the Mississippi Department of Environmental Quality to demonstrate compliance under the Clean Water Act.
Judge Davidson sentenced Couey to 18 months incarceration on each of the five counts of conviction, to run concurrently. Upon release from prison, Couey will be placed on supervised release for a term of one year.  Couey is scheduled to report to prison on March 16, 2020.
William C. Lamar, U.S. Attorney for the Northern District of Mississippi, said, “One of our top priorities is to protect the environment from those who would disregard our environmental regulations and laws, placing in jeopardy the well-being of our citizens.”
“The defendant in this case is alleged to have falsified thousands of water test results, including results used to confirm the safety of drinking water,” said Charles Carfagno, acting Special Agent in Charge of EPA’s criminal enforcement program in Mississippi. “This case demonstrates that EPA will hold accountable those who violate laws designed to protect the health and safety of our communities.”
This case was investigated by the EPA, Criminal Investigation Division, and the Mississippi Department of Environmental Quality. The case was prosecuted by AUSA Robert Mims.
Human Resources Manager Sentenced for Her Role in California Explosion
Former Santa Clara Waste Water Company Human Resources Manager Marlene Faltemier was sentenced on October 10, 2019 for her role in a November 2014 explosion at 815 Mission Rock Road in Santa Paula, California that injured numerous employees and first responders, and for the subsequent storage of undisclosed hazardous chemicals on site in 2015.
On November 18, 2014, at approximately 3:45 a.m., an explosion occurred at the wastewater treatment facility owned and operated by the Santa Clara Waste Water Company. The investigation revealed the blast was caused by the mixing and disposal of hazardous chemicals into a 5,040-gallon vacuum truck not rated to hold nor transport such chemicals. Numerous employees of the corporate defendants as well as firefighters and paramedics who responded to the scene and rendered aid were injured either by the initial explosion or by inhaling toxic vapors which developed on site shortly afterwards from the chemicals that exploded out of the vacuum truck.
In November 2015, a search warrant was served at the corporate defendants' facility in Santa Paula which led to the discovery of approximately 5,500 gallons of sodium hydroxide, also known as Petromax, stored within a locked shipping container. These chemicals were required by law to be reported into the California Environmental Reporting System (CERS), yet the corporate defendants' officials had not reported their possession of Petromax since 2013. The investigation revealed Faltemier exchanged text messages with convicted co- defendant David Wirsing, detailing company efforts to hide chemicals from environmental inspectors before inspections were completed in November 2014. After the November 2014 explosion, law enforcement confirmed Faltemier was personally aware of the presence of over 5,000 gallons of a chemical named "Petromax" being on site, yet she failed to report the presence of these chemicals in the California Environmental Reporting System as required by law.
During the sentencing hearing, the court imposed and stayed a two-year jail sentence and placed Faltemier on formal probation for five years. Faltemier was also ordered to pay victim restitution in the amount of $2,647,621.35.
The case was investigated by EPA’s Criminal Investigation Division, the US Department of Transportation, the State Department of Industrial Relations, the Ventura County Environmental Health Division and the Division of Occupational Safety and Health (Cal/OSHA). Prosecution was handled by the California Attorney General's Office and the Ventura County District Attorney's Office.
$10 Million Fine for Use and Storage of Banned Pesticide
Monsanto Company agreed to plead guilty to illegally using a banned pesticide known as Penncap-M on research crops at one of its facilities on the Hawaiian island of Maui.
In court documents filed on November 21, 2019 in United States District Court in Honolulu, Monsanto agreed to plead guilty to a misdemeanor offense of unlawfully spraying a banned pesticide – specifically methyl parathion, the active ingredient in Penncap-M –which the company used on corn seed and research crops at its Valley Farm facility in Kihei, Hawaii in 2014.
Monsanto admitted in the court documents that it used Penncap-M, even though the company knew its use was prohibited after 2013 pursuant to a cancellation order issued by the Environmental Protection Agency. The company further admitted that, after the 2014 spraying, it told employees to re-enter the sprayed fields seven days later – even though Monsanto knew that workers should have been prohibited from entering the area for 31 days.
The documents filed on November 21 also include a deferred prosecution agreement related to two felony counts of unlawfully storing an acute hazardous waste. Pursuant to the agreement, Monsanto will pay $10 million – a $6 million criminal fine and $4 million in community service payments to Hawaiian government entities. The government agreed to dismiss the felony charges in two years if Monsanto abides by the agreement, which includes paying a total of $10.2 million, successfully completing a two-year period of compliance with the agreement’s terms, and maintaining a comprehensive environmental compliance program at all of its facilities in Hawaii to ensure compliance with all federal environmental laws.
“The illegal conduct in this case posed a threat to the environment, surrounding communities and Monsanto workers,” said United States Attorney Nick Hanna. “Federal laws and regulations impose a clear duty on every user of regulated and dangerous chemicals to ensure the products are safely stored, transported and used.”
In a statement of facts filed in court, Monsanto admitted that it knowingly used, transported and stored Penncap-M in violation of federal law. The pesticide “had to be managed as an acute hazardous waste in compliance with the Resource Conservation and Recovery Act (RCRA),” which prohibited the storage or transportation of the pesticide without a permit after 2013.
From March 2013 through August 2014, even though the pesticide was on the company’s lists of chemicals that needed disposal, Monsanto stored 160 pounds of Penncap-M hazardous waste at its Molokai facility, which under RCRA made Monsanto a “Large Quantity Generator” of hazardous waste.
In addition to spraying the banned pesticide at one of its three facilities on Maui, Monsanto also stored a total of 111 gallons of Penncap-M at Valley Farm and sites known as Maalaea and Piilani. Just like on Molokai, the storage of Penncap-M at the three Maui sites made Monsanto a “Large Quantity Generator” of acute hazardous waste at the three locations, according to court documents. Furthermore, when it transported Penncap-M to its Valley Farm site in 2014, the company violated federal law when it failed to use a proper shipping manifest to identify the hazardous material and when it failed to obtain a permit to accept hazardous waste at that site.
“To protect human health and the environment, pesticides must be properly applied and stored,” said Special Agent-in-Charge Jay M. Green of EPA’s criminal enforcement program in Hawaii. “EPA will continue to work in close partnership with our state and local counterparts to bring cases against those who knowingly threaten the health and safety of Hawaiian communities.”
In addition to $6 million criminal fine, Monsanto has agreed to make a total of $4 million in community service payments. The five Hawaiian agencies that each will receive $800,000 are: the Hawaii Department of Agriculture, to create and fund a Pesticide Disposal Program and for training and education purposes; the Hawaii Department of Land and Natural Resources, Maui Division of Aquatic Resources, for use in its marine programs; the Hawaii Department of Health, Hazardous Waste Branch, for use in its training and education programs; the Hawaii Department of Health, Environmental Management Division, for water quality monitoring, water quality improvements, and training and education purposes; and the Kahoolawe Island Reserve Commission, for use in the clean-up of the island of Kahoolawe.
In relation to the criminal count to which Monsanto has agreed to plead guilty, the company has agreed to be on probation for two years and to pay the maximum possible fine of $200,000.
This case is the result of an investigation by EPA’s Criminal Investigation Division.
This matter is being prosecuted by special attorneys appointed by the Attorney General. The United States Attorney’s Office for the District of Hawaii was recused from the investigation.
K.P. Kauffman Co. to Spend $3.5 Million to Resolve VOC Violations
The Justice Department, the EPA and the state of Colorado announced a settlement with Denver-based K.P. Kauffman Company Inc. (KPK) resolving alleged violations of the federal Clean Air Act and Colorado air quality regulations. The settlement, set forth in a consent decree lodged with the U.S. District Court for the District of Colorado, requires KPK to implement pollution control measures at 67 well production facilities – for a total estimated expenditure of $2.5 million. The company will also pay a $1 million civil penalty.
The settlement resolves allegations made in an Oct. 5, 2018, complaint that KPK violated requirements to minimize volatile organic compound (VOC) emissions from its oil and natural gas production operations in the Denver-Julesburg Basin. VOCs are a key component in the formation of ground-level ozone, a pollutant that irritates the lungs, exacerbates diseases such as asthma, and can increase susceptibility to respiratory illnesses, such as pneumonia and bronchitis.
The well production facilities covered by this settlement are in an area that does not meet National Ambient Air Quality Standards established under the Clean Air Act for ground-level ozone: the Denver Metro/Northern Front Range ozone nonattainment area. This action will contribute to the improvement of air quality in communities across the Front Range by reducing the emissions of VOCs that lead to the formation of ground-level ozone.
“Oil and gas production fuels our economy, but it must be done responsibly,” said Jeffrey Bossert Clark, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. “We will continue to take action where operators fail to comply with our nation’s clean air laws.”
“This is the fourth joint settlement EPA has completed with the State of Colorado to secure compliance and reduce emissions from storage tanks at oil and gas operations,” said EPA Regional Administrator Gregory Sopkin. “The EPA continues to enforce the Clean Air Act, and our partnership with the State continues to deliver cleaner, healthier air for Colorado’s communities.”
This settlement covers 67 KPK oil and gas production facilities in Colorado’s Denver-Julesburg Basin. As part of the agreement, KPK will implement measures to improve operation and maintenance practices and ensure the vapor control systems on its storage tanks are adequately designed and sized. These improvements, including monthly or quarterly inspections using infrared cameras and the installation of pressure monitors to detect and respond to excess emissions, are expected to reduce VOC emissions from KPK’s operations by approximately 424 tons per year.
KPK will also implement three environmental mitigation projects to further reduce VOC emissions. First, KPK will install rod lifts at 12 oil and gas wells to reduce or eliminate the need to unload the well – a procedure used to increase well production during which emissions are vented to the atmosphere. Second, KPK will use a Boreal Laser to scan for methane emissions at all well production facilities covered by the consent decree, and if necessary, will follow up with corrective actions to address the emissions. Third, KPK will implement operation and maintenance requirements, including increased inspections, at four production facilities not covered by air pollution regulations due to their small size. KPK estimates that these mitigation projects will reduce VOC emissions by an additional 131 tons per year.
The settlement also requires KPK to pay the United States and the state of Colorado a $1 million civil penalty, split evenly between the governments.
This action is based on inspections of KPK operations conducted from 2013 to 2018 by EPA and the Colorado Department of Public Health and Environment, which found VOC emissions from many of KPK’s storage tanks. Through these inspections and information requests, EPA and the state of Colorado identified alleged violations of Colorado’s Regulation Number 7, including undersized vapor control systems and inadequate operation and maintenance practices. These alleged violations include federally enforceable requirements of Colorado’s State Implementation Plan to improve air quality in the Denver Metro/Northern Front Range non-attainment area.
This settlement represents the latest in a series of EPA and state actions to secure compliance and reduce emissions from oil and gas sources in the nonattainment area, including recent settlements with Noble Energy Inc. (2015), PDC Energy Inc. (2017), and HighPoint Operating Co. (2019). With this action, a total of 3,141 well production facilities in the area are now subject to compliance requirements mandated by joint federal/state consent decrees. In addition, when combined with state-issued compliance orders, 93 percent of production facilities with condensate storage tanks in the Denver ozone nonattainment area are currently subject to enhanced design or maintenance requirements, or both.
The consent decree, lodged in the U.S. District Court for the District of Colorado, is subject to a 30-day public comment period and final court approval.
17 Penalties for Environmental Violations Issued by Oregon DEQ
The Oregon Department of Environmental Quality issued 17 penalties totaling $308,162 in December for various environmental violations. A detailed list of violations and resulting penalties is at
Fines ranged from $2,800 to $49,979. Alleged violations included operating a waste disposal site without a permit, failing to control erosion and sediment runoff from construction sites and discharging partially treated wastewater into local waterways.
DEQ issued civil penalties to the following organizations and individuals:
  • Arnprior Aerospace Portland, Inc., $7,793, Portland, stormwater
  • Carl Zeiss Vision, $8,800, Clackamas, stormwater
  • City of Portland, $40,200, Portland, wastewater
  • Coresky Maritime S. A. Panama, $3,600 , Portland, ballast water
  • Georgia-Pacific Toledo LLC, $27,106, Toledo, wastewater
  • Davidson & Sons Construction Co., Inc., $2,800, Medford, air quality
  • Josephine County - Kerby Landfill, $3,600, Kerby, solid waste
  • Lamb Weston, Inc., $6,800, Hermiston, wastewater
  • Lamb Weston, Inc., $10,000, Hermiston, wastewater
  • Lennar Northwest, Inc., $23,569, Portland, stormwater
  • Mel-Mic Enterprises, Inc., $49,979, Woodburn, multiple violations
  • Obluda, Lavender Moss and Thatcher, Bret Byron, $44,913, Merlin, solid waste
  • Rondys Inc., $28,920, Newport, stormwater
  • Shields, Michael, $18,000, La Pine, solid waste
  • T. & L. Sheet Metal, $3,426, Beaverton, stormwater
  • US Metal Works, $9,853, Sandy, stormwater
  • West Hills Land Development, LLC., $18,803, Wilsonville, stormwater
Organizations or individuals must either pay the fines or file an appeal within 20 days of receiving notice of the penalty. They may be able to offset a portion of a penalty by funding a supplemental environmental project that improves Oregon’s environment. Penalties may also include orders requiring specific tasks to prevent ongoing violations or additional environmental harm.
$825,000 Fine for Unauthorized Hazardous Waste Management
California’s Department of Toxic Substances Control announced that USS-POSCO Industries (UPI), based in Pittsburg, California, will pay an $825,000 penalty for mismanaging hazardous waste and illegally storing lead dust in a dilapidated building, which resulted in the release of harmful materials outside of the building.
“We are deeply concerned that UPI knowingly mismanaged hazardous waste and failed to prevent its release into the environment,” said Meredith Williams, DTSC Director. “UPI compounded the dangers to its staff, the public, and the environment each day it put off compliance with hazardous waste management requirements. This settlement makes clear that ignoring environmental laws carries heavy consequences.”
UPI allowed lead- and zinc-contaminated dust and debris to accumulate in a run-down storage area and be dispersed by wind and rain into the environment. The company also failed to use waste containers, labels, inspections, and other forms of proper waste management.
DTSC’s inspection in 2017 uncovered a run-down, walled-off portion of the building where lead- and zinc-contaminated dust and debris collected on the floor and were dispersed through the air and into the outdoors. Inside, DTSC inspectors noted broken windows, open ceilings, and bird feathers and droppings. DTSC took samples from the soil immediately surrounding the building that showed hazardous levels of lead and zinc, indicating that contaminated dust from the building entered the environment.
UPI managers instructed employees to wear personal protective equipment prior to entering the contaminated area of the building, indicating that the company was aware of the unsafe conditions and the dangers they posed to public health and the environment. The company also failed to use waste containers, labels, inspections, and other forms of proper waste management.
A follow-up inspection by DTSC in the spring of 2018 found that UPI was using tanks formerly used for acid wash baths to illegally store liquid and solid hazardous waste.
As part of the settlement, UPI agreed to perform corrective action to remediate hazardous waste releases at its facility, including the lead and zinc-contaminated dust and soil.
The complaint against UPI and settlement documents were filed in Contra Costa County Superior Court by the California Attorney General’s Office on behalf of DTSC. The court approved the settlement on December 12, 2019. The consent judgement can be viewed here.
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