Supreme Court Weakens Clean Water Act Protections

May 29, 2023
The U.S. Supreme Court issued its ruling in Sackett v U.S. Environmental Protection Agency, re-interpreting the Clean Water Act to eliminate longstanding protections for millions of acres of wetlands. Five Justices on this new conservative Court narrowed the definition of “waters of the United States” — often referred to as “WOTUS” — limiting the reach of the Act, one of the most successful, effective, and widely supported pieces of legislation ever codified in the United States.
The Court’s ruling comes five months after the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers issued long-anticipated regulations clarifying the WOTUS definition. The Court’s decision to hear the Sackett case as EPA was finalizing its new regulation was highly unusual and marks the latest instance in which conservative Justices ignored traditional principles of judicial restraint in their haste to rewrite laws that protect people and the environment. The Sackett decision now creates tremendous confusion for regulators and the communities they protect, because it undercuts the legal foundation of the new science-based WOTUS regulation, as it applies to wetlands.
“The Sackett decision undoes a half-century of progress generated by the Clean Water Act. More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” said Sam Sankar, senior vice president of Programs at Earthjustice. “This decision is the culmination of industry’s decades-long push to get conservative courts to do what Congress refused to do. The Court’s decision to deregulate wetlands will hurt everyone living in the United States. Earthjustice will continue to fight to protect our waters to ensure the health of communities and ecosystems for decades to come.
“While Earthjustice and our allies are closely evaluating the impact of the Sackett decision on the new WOTUS regulation, we can say with certainty that the Court has once again given polluting industries and land developers a potent weapon that they will use to erode regulatory protections for wetlands and waterways around the country.”
Earthjustice filed an amicus brief in this case on behalf of our clients — 18 Tribes who rely on waterways for food, economy, and culture — to explain the importance of preserving precedent interpretations of the Clean Water Act that make it possible to protect those waterways. The Court’s decision rejects those concerns in favor of a deregulatory approach that serves industry interests at the expense of people downstream who depend on clean water for their health, livelihoods, and way of life.
Four Justices recognized this in their concurring opinion that laid out the problems with the majority’s new, narrowed test for waters of the United States. As Justice Kavanaugh explained, that test “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
The ongoing willingness of the conservative supermajority to disregard traditional principles of judicial restraint in service of a deregulatory, pro-industry, and anti-environment agenda, raises deep concerns about the future of other bedrock environmental laws. In the last two terms, the Supreme Court has issued decisions that severely restrict our ability to protect our waterways and combat climate change.
$2.4 Million Penalty Levied for Multiple Environmental Violations
Eastman Chemical Resins, Inc. will pay a $2.4 million penalty for environmental violations at the sprawling 56-acre manufacturing facility in West Elizabeth, Pennsylvania, that is now owned and operated by Synthomer Jefferson Hills, LLC, the U.S. Environmental Protection Agency announced today.
“Compliance with our nation’s laws that protect the environment and the health of our communities is an obligation companies can’t take lightly,” said EPA Regional Administrator Adam Ortiz. “The actions required by this settlement will help ensure that the facility operates in a manner that is protective of environmental resources and the health of nearby communities.”
“Pennsylvanians have a right enshrined in the state constitution to clean air and pure water, and we will always pursue operators that violate that right and hold polluters accountable,” said Pennsylvania Department of Environmental Protection Acting Secretary Rich Negrin. “We were pleased to work with our federal partners to hold this polluter accountable.”
Along with the financial penalty being paid by Eastman, Synthomer has agreed to take actions to eliminate ongoing violations and prevent future violations. This includes conducting a comprehensive review of stormwater discharges and groundwater contamination and implementing initiatives to ensure compliance with environmental laws, including the Clean Water Act, Resource Conservation and Recovery Act and parallel Pennsylvania laws.
Violations include:
  • Chronic Clean Water Act violations including exceeding allowable limits for zinc, xylene and other pollutants that are discharged to the Monongahela River.
  • Unpermitted discharges of oil and other pollutants.
  • Failure to comply with operation and maintenance obligations of its Clean Water Act permit.
  • Violations of the facility’s Clean Air Act risk management program.
  • Numerous hazardous waste management violations.
The penalty will be divided equally between the United States and Pennsylvania, who are co-plaintiffs in this consent decree. Pennsylvania DEP assisted EPA in the investigation and litigation. The settlement addresses alleged federal and state environmental law violations that have occurred since 2017, which threaten to degrade receiving streams and impact public health and harm aquatic life and the environment. 
The chemical producing facility is bordered on the southeast by the Monongahela River and bisected by an unnamed tributary to that river.  The proposed consent decree, filed in the federal district court in Pittsburgh, is subject to a 30-day public comment period and approval by the federal court.
EPA Takes Action To Protect Sandberg Creek and Fines Newburg Egg Processing, Corp. for Violating Clean Water Act
The U.S. Environmental Protection Agency (EPA) has settled an administrative case against Newburg Egg Processing Corp. for allegedly failing to meet standards in the wastewater it treats and sends to a wastewater treatment plant. The company’s alleged failures led to excessive nitrogen and ammonia pollution that passed through the wastewater treatment plant and into Sandburg Creek in the Village of Woodridge, NY. The company will pay a penalty of $100,000 for not meeting the pollution limits and has already taken steps to address the cause of the violations.
“Newburg Egg and other companies must comply with all aspects of the Clean Water Act including properly treating their industrial wastewater,” said EPA Regional Administrator Lisa F. Garcia. “EPA will hold companies accountable when they violate critical laws that protect public health and the environment. We are glad that the company chose to cooperate and is investing in needed equipment.”
As an industrial source, the company must first treat its waste stream – a process referred to as pre-treatment -- before discharging it to the municipal wastewater treatment plant. This pre-treatment prevents excessive pollution levels, which can interfere with the effectiveness of the  wastewater treatment plant. In this case the pollution levels that Newburg Egg discharged caused the Woodbridge, NY treatment plant to exceed pollution limits set by a New York wastewater permit.
As a result of these violations, excessive amounts of nitrogen, ammonia, phosphorus and other materials were discharged into Sandburg Creek between January 2018 to June 2021. To prevent this from happening again, Newburg Egg has added additional capacity to hold their wastewater and properly pretreat it before discharging to the Woodridge wastewater treatment plant. Newburg Egg has separately agreed to install a new polymer mix and feed system to provide better treatment to remove contaminants like nitrogen, ammonia and phosphorus at its pretreatment plant. This will improve its process wastewater treatment prior to discharge to the village wastewater treatment plant.
Bureau of Safety and Environmental Enforcement Oversees Two Successful Capping Stack Drills in the Gulf of Mexico
The Bureau of Safety and Environmental Enforcement (BSEE) announced the successful completion of two Gulf of Mexico equipment deployment drills to evaluate the oil and gas industry’s preparedness to respond to a subsea blowout. Each of the drills lasted between three and five days and were mobilized by Beacon Offshore Energy (BOE) and Chevron, along with their mutual aid partners to deploy, and install equipment to cap a blowout in deep water off the coast of Louisiana.
  • BSEE initiated BOE’s drill on Sunday, May 7, at 7 a.m., and concluded it Wednesday, May 10, at 10:40 p.m.
  • Chevron’s drill was initiated on Friday, May 19, at 7 a.m., and concluded Tuesday, May 23 at 8:45 p.m.
During the two unannounced drills, BSEE required BOE and Chevron each to deploy a capping stack from their respective storage locations near Houston and Corpus Christi, Texas, to separate areas in the Gulf of Mexico, ranging from approximately 70 to 140 miles from shore. Once on-site, each operator lowered a capping stack onto a simulated well head on the ocean floor in about 6,000 feet of water, connected the capping stack to the wellhead, and pressurized the system to 12,500 pounds per square inch to simulate well pressure.
“We are committed to ensuring the offshore oil and gas industry maintains the highest level of preparedness,” said BSEE Director Kevin M. Sligh Sr. “The initial results from these drills were successful, and we will evaluate lessons learned as we continually work to enhance safety in offshore operations.”
BSEE conducts regular, thorough inspections of source control equipment and observes required pressure tests annually. Unannounced deployment drills, such as the ones conducted this month, provide assurances that the equipment will perform as required while providing important training opportunities for offshore personnel.
A capping stack is a critical piece of source control equipment designed to shut off any oil flow from a well if other systems fail, such as the blowout preventer. Since the initial drill in 2012, experienced personnel in both industry and government sectors have turned over. Also, the consortiums that provided contract access to the well containment systems have expanded their equipment inventories and updated internal procedures. As a result, in December 2022, Sligh directed the bureau to initiate two drills in 2023 to verify the industry’s readiness to deploy these assets quickly.
“The time was right to initiate these drills,” said Sligh. “We have provided a new generation of responders with the valuable experience and training to ensure they are prepared and ready, if needed.”
BSEE engineers, inspectors, and preparedness analysts were onsite throughout the two separate multi-day drills, monitoring industry inspections and tests before the capping stacks journeyed offshore. While aboard the transit vessels, they evaluated the procedures firsthand as operators lowered the capping stacks to the seabed. 
While initial observations indicate the drills met BSEE requirements for deploying source control equipment, BSEE will evaluate all aspects and results of the drills and make recommendations in a formal report later this year.
“Drills of this magnitude are proof our collaboration and vigilance is a shared commitment throughout government and industry,” said Gulf of Mexico Region Director Bryan Domangue. “The hands-on experience we have all gained cannot be understated. To physically deploy assets of this scale provides an unmatched understanding of the importance of readiness.”
“This is a remarkable achievement and a milestone for containment response,” said BSEE Oil Spill Preparedness Division Chief Eric Miller. “These types of drills reinforce government and industry efforts and capabilities to address and control oil flow from a damaged subsea well.”
Through its Oil Spill Preparedness Program, BSEE minimizes the impact of offshore facility oil spills by ensuring energy producers are trained, resourced, and response ready. 
For more information about post-Deepwater Horizon reforms, visit the BSEE Regulatory Reforms page. 
Nine Inspections in Four States Find Dollar General Again Exposed Workers to Obstructed Exits, Fire, Electrical Hazards; Carry $3.4M in New Penalties
Since 2017, more than $21M in proposed fines for national retailer after 240 inspections.
Unsafe conditions typically found by federal workplace safety inspectors at discount stores operated by Dollar General Corp. and Dolgencorp nationwide were on display again during U.S. Department of Labor inspections at nine locations in Maine, North Dakota, Ohio and Wisconsin in late 2022.
The workplace safety failures identified in these inspections add $3.4 million in proposed penalties to the more than $21 million in fines the department’s Occupational Safety and Health Administration has proposed since 2017 after conducting 240 inspections at stores nationwide.
OSHA inspections at Dollar General stores commonly find aisles, emergency exits, fire extinguishers and electrical panels blocked by stored merchandise and other materials, and boxes stacked unsafely. These conditions expose employees to fire, electrical and struck-by and other hazards in violation of federal regulations.
“Dollar General continues to expose its employees to unsafe conditions at its stores across the nation,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “As one of the nation’s largest retailers, the company must focus its attention on resolving these issues and making corporate-wide changes to protect the safety and well-being of the people they employ.”
The findings of OSHA inspections in October, November and December 2022 in Maine, North Dakota, Ohio and Wisconsin included the following:
Enfield, Maine
Responding to a complaint in November 2022, OSHA found rolling containers and boxes of products obstructing or completely blocking access to an emergency exit. The agency also found carts clogging aisles and preventing quick access to fire extinguishers, and some goods stacked unsafely up to 6 feet high in front of and around an electrical panel. In addition, inspectors noted the store had not visually inspected fire extinguishers at least monthly, as required.
OSHA cited DG Retail LLC, operator of the Enfield store, with five repeat violations and proposed $321,419 in new penalties. View the Enfield citations.
Casselton, Garrison, Hillsboro, Killdeer, Minot and Tioga, North Dakota
Alerted by state fire marshals concerned about hazards at four stores and by complaints at two locations, OSHA opened inspections between late October and late December 2022 at these six Dollar General stores. They found exit routes, doors, fire extinguishers and electrical panels blocked and unsafely stacked merchandise.
At the Minot store, OSHA inspectors learned at least six store employees suffered exposure to toxic vapors —three of whom sought medical treatment — after several chemical containers ruptured and their contents mixed in December 2022. In this instance, the agency cited Dollar General for not providing employees with adequate respiratory protection and personal protective equipment and for failing to train employees on safe handling of hazardous chemicals and proper clean-up.
Following the North Dakota inspections, OSHA identified 32 violations in a two-month period in fall 2022 and proposed $2.5 million in penalties. View the citations for the North Dakota inspections.
Kettering, Ohio
OSHA inspectors at a Dollar General store in Kettering, Ohio, found exit routes, fire extinguishers and electrical panels blocked by merchandise and other materials in November 2022. The agency issued citations for three repeat violations for fire and electrical hazards with $270,116 in proposed penalties. View the Kettering store’s citations.
Kewaunee, Wisconsin
Responding to a complaint of unsafe working conditions, OSHA investigators discovered exit routes, fire extinguishers and electrical panels blocked by unsafely stacked merchandise and other materials in November 2022. Citations were issued for four repeat and four willful violations for unsafe electrical cords, fire extinguishers that were not inspected, crushing hazards, and conditions that would prevent employees from exiting the store safely in an emergency. OSHA has proposed $367,216 in penalties. View the citations for the Kewuanee location.
The recent findings and penalties continue Dollar General Corp. and Dolgencorp, LLC’s long history of willful, repeat and serious workplace safety violations, a history that led OSHA to include Dollar General Corp. in its Severe Violator Enforcement Program.
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