Waters of the U.S. Rule to be Rescinded

July 05, 2017

The EPA, Department of Army, and Army Corps of Engineers have proposed a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" or WOTUS. This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States." The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice. 

This proposed rule follows the February 28, 2017, Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."

Many groups oppose the repeal as it moves this country away from a commonsense safeguard that helps state and federal agencies protect our rivers, streams, and wetlands under the Clean Water Act. The Clean Water Rule was built on years of public engagement and scientific research, and its repeal is the Trump Administration’s first step on the way to weakening clean water protections across the nation.

The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies.

Coalition of 12 Attorneys General Oppose Regulatory Rollbacks that Would Jeopardize Americans’ Health and Safety

A coalition of 12 Attorneys General, recently wrote U.S. Senate leadership expressing “strong opposition” to S. 951, the proposed Regulatory Accountability Act of 2017 (RAA), which would jeopardize the health, safety, and well-being of the American public. In a letter addressed to Senate leadership, the coalition contends that the RAA would bring the federal regulatory process “to a grinding halt,” thereby obstructing the implementation of laws that protect Americans from toxic chemicals, predatory marketing practices, dangerous labor conditions, unsafe food and drugs, and much more.

“The proposed Regulatory Accountability Act would strip away Americans’ protections from dangerous drugs, toxic chemicals in our food and toys, and make them more vulnerable to predatory business practices,” said Attorney General Frosh.

Click here to read the full letter.

The RAA was introduced in the Senate in April 2017. The Act’s stated purpose is to reform the federal regulatory process “to cut red tape so federal programs operate as intended, and are effective and efficient.”

While the Attorneys General recognize the laudable goal of promoting effective regulation, their letter forcefully argues that the many “ill-conceived and reckless provisions” of the RAA work against this goal by serving to “bollix, stymie, and derail the implementation of popular and necessary laws.” They point to several troubling provisions of the bill, including those that:

·         Increase the likelihood that so-called “high impact” rules and “major” rules will be subject to lengthy and burdensome trial-type hearings that advantage deep-pocketed special interests over the general public

·         Give the federal agencies unreviewable discretion to determine a rule is “high-impact” or “major,” which would then trigger cumbersome new procedural rules and stymie the adoption of critical public safeguard

·         Require proposed rules to undergo a new ill-defined “most cost-effective” standard of analysis that will invite litigation from special interests seeking to block, delay, and weaken proposed federal regulations, whether they be to a protect the environment, public health, workplaces, or food and drug safety.


The letter provides a striking example of how an equally prohibitive standard derailed a decade- long effort to regulate the notoriously deadly material asbestos. In 1989, after studying the regulation of asbestos for over 10 years and amassing a 100,000-page administrative record, EPA announced a final rule banning virtually all asbestos-containing products under the Toxics Substances Control Act. The asbestos industry and its supporters filed a lawsuit challenging EPA’s action. While the court agreed with EPA that “asbestos is a potential carcinogen at all levels of exposure,” it found the Agency had failed to demonstrate that it had met the standard for analysis—the “least burdensome alternative”—required by the Act, and vacated the rule.

Through the “most cost-effective” standard and many other provisions of the bill, the coalition argues that the RAA “would introduce unnecessary, unwieldy, and costly impediments into federal rulemaking that would dramatically increase the time necessary to put public safeguards in place, exclude the public from the rulemaking process, and lead to avoidable and prolonged litigation that favors deep-pocketed special interests.”

The letter urges the Senate leadership to oppose passage of the RAA. The letter was signed by Attorneys General from California, Delaware, Iowa, Maine, Maryland, Massachusetts, New York, Oregon, Rhode Island, Vermont, Washington, and District of Columbia.

State Attorneys General Vow Lawsuit if EPA Fails to Control Methane Pollution

A coalition of 15 other attorneys general, the California Air Resources Board, and the City of Chicago in notified the EPA of their intention to sue the Agency. In a letter to EPA Administrator Scott Pruitt, the coalition provides the required notice of their intention to sue for failing to fulfill its mandatory obligation under the Clean Air Act to control methane emissions from existing oil and natural gas sources and for "unreasonably delaying" the issuance of such controls. 

"Methane is one of six major greenhouse gases directly linked to climate change and the Trump Administration continues to neglect its responsibility to establish guidelines for limiting these emissions," said Attorney General Jepsen. "My office, in partnership with the coalition, is committed to protecting our environment and the public health and welfare. We will fight with every legal means possible to establish proper standards to curb climate change pollution."

Methane is an extremely potent greenhouse gas (GHG), warming the climate about 80-times more than carbon dioxide over a 20-year timeframe. Oil and gas operations—production, processing, transmission, and distribution—are the largest single industrial source of methane emissions in the U.S. and the second largest industrial source of U.S. GHG emissions behind only electric power plants. Estimates based on EPA data show that roughly $1.5 billion worth of natural gas—enough to heat over 5 million homes—leaks or is intentionally released from the oil and gas supply chain each year. The logic of continuing to allow leaks and intentional discharges of methane is especially dubious, as methane itself is a valuable product, being the primary component of natural gas.

Nearly 90% of the methane emissions projected for the oil and gas industry in 2018 will come from sources in existence prior to 2012. However, proven, cost-effective methods are readily available to control methane emissions from these existing sources. A 2014 analysis prepared by ICF International found that the industry could cut methane emissions 40% below the projected 2018 levels using available technologies and techniques—at an average annual cost of less than $0.01 per thousand cubic feet of natural gas produced. Taking into account the total economic value of the gas that would be recovered, the 40% reduction would yield savings of over $100 million dollars per year for the U.S. economy and consumers.

In 2012, Connecticut, along with a coalition of other states, notified EPA of their intent to sue for failing to adopt limits on methane from new and existing oil and gas facilities. In June 2016, EPA finalized standards to control methane emissions from oil and gas operations that were constructed or substantially modified after September 2015. Under the federal Clean Air Act, the regulation of these "new" sources triggered a legal requirement for the Agency also to regulate methane emissions from "existing" sources—emission sources in oil and gas operations in existence before September 2015.

Accordingly, in November 2016, the EPA issued an "Information Collection Request" that sought information from oil and gas operators of "critical" use in addressing existing source emissions, including the number and types of equipment at production facilities, and emission sources and control devices or practices.  EPA began receiving the requested information beginning in January 2017.

However, on March 2, 2017, Administrator Pruitt—without any public notice or opportunity for comment—withdrew the Request. Although the coalition's letter makes clear that the information request is not necessary for EPA to issue the required rule, its revocation sent a clear signal that EPA has no intention of meeting its statutory obligation.

In the letter to Administrator Pruitt, the coalition cites Congressional intent, established Agency practice, and the overwhelming contribution that existing sources make to methane emissions from these operations as support for their contention that EPA is obligated to act "without delay" to finalize controls on methane emissions from existing oil and natural gas sources. The coalition argues that that EPA's failure to act since September 2015 to issue controls on methane emissions from existing sources in the oil and gas industry violates the Agency’s non-discretionary duty under the Clean Air Act and is an "unreasonable delay" in setting such controls.

Under the Act, EPA must be provided advance notice of any suit seeking to compel it to act. The recent coalition letter meets this requirement, providing EPA with notice of its intention to sue if, within the required notice period of 60 days (for a nondiscretionary duty claim) and 180 days (for an unreasonable delay claim), the Agency fails to issue methane standards for existing sources in the oil and gas industry. 

Attorneys General have taken several other steps to force the Trump Administration to control methane pollution from the oil and gas industry.  Last week, a coalition of 14 states, including Connecticut, filed a motion to intervene in a lawsuit against EPA’s actions halting regulation of methane emissions from new sources in the oil and gas industry. 

The coalition includes New York, California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia, as well as the California Air Resources Board and the Corporation Counsel for the City of Chicago. 

Assistant Attorneys General Scott Koschwitz, Robert Snook, and Matthew Levine, head of the Environment Department, are assisting the Attorney General with this matter. 

Former Plating Company Ordered to Pay $5.2 Million for Hazardous Waste Violations

The Department of Toxic Substances Control (DTSC) was recently awarded $5.2 million in civil penalties from Marion Patigler and the estates of her parents, Gerhard and Ingrid Patigler, for years of hazardous waste violations. 

The judgment took into account the more than $500,000 in enforcement costs incurred by the California Attorney’s General Office and $300,000 in cleanup costs incurred by DTSC. Marion Patigler was also permanently banned from engaging in any future hazardous waste management practices in California. 

Marion Patigler was sentenced to three years in jail for her failure to complete the cleanup of hazardous waste left at the facility in Richmond in 2015. For many years, Electro-Forming operated as an electroplating and metal polishing company located in a mixed-use residential neighborhood in Richmond.

In 2012, DTSC’s Office of Criminal Investigations initiated an investigation after it received a complaint from a former Electro-Forming employee alleging that Marion Patigler engaged in illegal disposal and treatment of hazardous plating waste. Since then, the enforcement case evolved as follows:

·         In March 2013, a criminal search warrant was executed simultaneously at the plating facility and Marion Patigler’s home in Martinez, California.

·         In August 2013, the California Attorney General’s Office, on behalf of DTSC, filed a complaint against Electro-Forming, Co., Marion Patigler, and the Estates of Gerhard and Ingrid Patigler for penalties and injunctive relief to address imminent threats to human health and the environment.

·         In November 2013, large quantities of hazardous waste were removed from the facility.

·         In March 2014, Contra Costa District Attorney’s Office filed criminal charges against Marion

·         Patigler and Electro-Forming for hazardous waste violations.

·         In November 2014, DTSC shut down all plating operations at the facility after finding

·         ongoing hazardous waste violations.

·         In February 2015, Marion Patigler and Electro-Forming pleaded guilty to criminal charges and Marion Patigler received a suspended 3-year sentence, with the understanding that she comply with probation terms that include permanently shutting down all plating operations and cleaning up all the hazardous waste and materials at the facility.

·         In November 2015, Marion Patigler violated her probation and the 3-year jail term was imposed. Marion Patigler served 1 1⁄2 years of her sentence at the Martinez Detention Facility.

DTSC’s Emergency Response Unit oversaw the cleanup of the hazardous waste left abandoned at the facility.

DTSC partnered with Contra Costa County District Attorney’s Office, the Contra Costa County Environmental Health Services Hazardous Materials Unit, Richmond City Fire Department, Alameda County District Attorney’s Office and the Contra Costa County Central Sanitation District in the investigation.

Tractor Supply Company to Pay $485,400 in Statewide Hazardous Waste Settlement

Santa Barbara County District Attorney Joyce E. Dudley announced that, along with 35 other California District Attorneys, Yolo County Superior Court Judge Samuel McAdam has ordered Tractor Supply Company, Inc., and one of its subsidiaries to pay $485,400 as part of a settlement in a civil-environmental prosecution.

According to the Yolo County District Attorney’s complaint. Tractor Supply Company and its subsidiary, Petsense, Inc., unlawfully handled and disposed of various hazardous wastes and materials throughout the state over a five-year period. These hazardous wastes and materials included pesticides, medications, batteries, ignitable liquids, and other flammable, reactive, toxic, and corrosive materials. The settlement resolves the allegations made in the District Attorney’s complaint.

A series of investigations conducted by district attorney investigators statewide, along with environmental regulators, revealed that Tractor Supply and Petsense stores had mishandled hazardous wastes. Regulators also found the documentation of employee hazardous waste training to be incomplete.

“Thanks to the collaborative efforts of district attorneys and investigators throughout the state, businesses operating in California are well aware of their environmental responsibilities and our environment is better protected as a result,” said District Attorney Dudley.

According to the Yolo County District Attorney, Tractor Supply and Petsense cooperated throughout the investigation and responded quickly to enhance their policies and procedures designed to eliminate the improper disposal of hazardous waste products in California stores.

There is one Tractor Supply Company store in Santa Barbara County, located at 221 East Highway 246 in Buellton. As part of this settlement, Tractor Supply Company will pay $1,250 in civil costs and penalties to Santa Barbara County

Justice Department and State of Colorado File Complaint Against PDC Energy Inc. for Alleged Clean Air Act Violations

The Department of Justice, the EPA, and the State of Colorado, on behalf of the Colorado Department of Public Health and Environment (CDPHE), recently filed a civil complaint in federal court in Denver, Colorado, against PDC Energy, Inc. (PDC).

The complaint alleges violations of the Clean Air Act, the Colorado Air Pollution Prevention and Control Act, Colorado’s federally approved State Implementation Plan, and Colorado Air Quality Control Commission Regulation Number 7 (Regulation 7), for unlawful emissions of volatile organic compounds (VOC) from storage tanks that are, or until recently were, part of PDC’s oil and natural gas production system in the Denver-Julesburg Basin (D-J Basin) located in Adams and Weld Counties, Colorado.

“Violations of environmental law will be pursued and punished,” said Environmental Protection Agency Administrator Scott Pruitt. “We will work with our federal, state and local partners to punish those that violate the laws to the detriment of human health and the environment.” 

“Reducing emissions from condensate storage tanks is a critical component of our efforts to bring the Denver Metro/North Front Range Area back into compliance with ground level ozone standards,” said Director of Environmental Programs Martha Rudolph of the Colorado Department of Public Health and Environment. “Colorado has been a leader in developing and implementing control requirements for these tanks and it is vitally important that we take the necessary steps to ensure that these requirements are uniformly followed.” 

“Violating emissions standards endangers public health and can give violators an unfair advantage in the marketplace,” said Acting Assistant Attorney General Jeffrey H. Wood of the Department of Justice’s Environment and Natural Resources Division. “The United States will pursue all appropriate remedies against entities that violate our nation’s clean air laws.”

PDC owns or operates approximately 600 tank batteries in the D-J Basin that PDC has certified as being controlled to comply with Regulation 7’s system-wide VOC reduction requirements. The complaint alleges that at 86 tank batteries, and potentially hundreds more, PDC has violated numerous requirements in Regulation 7 intended to address VOC emissions from storage tanks. The complaint alleges that PDC failed to adequately design, operate and maintain vapor control systems on condensate storage tanks resulting in VOC emissions from pressure relief valves and openings on condensate storage tanks.

The complaint alleges that PDC’s failure to comply with these requirements has resulted in significant excess VOC emissions, a precursor to ground-level ozone. Ground-level ozone is a criteria pollutant, meaning that it causes or contributes to air pollution that may reasonably be anticipated to endanger public health or welfare. PDC operates in an area where air quality does not meet the National Ambient Air Quality Standards (NAAQS) for ground-level ozone.  

These allegations are consistent with those set forth in the Compliance Advisory in December 2015 and the Notice of Violation in May 2017 that were both issued by CDPHE to PDC.

According to the complaint, following the issuance of the 2015 Compliance Advisory, CDPHE inspectors conducted additional inspections of PDC tank batteries and observed VOC emissions from several of the same tank batteries covered by the 2015 Compliance Advisory. CDPHE inspectors also observed VOC emissions from PDC tank batteries not covered by the 2015 Compliance Advisory and issued the 2017 Notice of Violation to PDC identifying violations of Regulation 7 at the other PDC tank batteries. 

The civil complaint filed recently seeks injunctive relief and the assessment of civil penalties.  A civil complaint does not preclude the government from seeking other legal remedies.

The Clean Air Act is the comprehensive federal law that regulates air emissions of criteria pollutants and hazardous air pollutants from stationary and mobile sources to protect public health and public welfare.

Peninsula Home Builders Fined $98,350 for Asbestos Violations

The Massachusetts Department of Environmental Protection (MassDEP) has penalized Peninsula Home Builders, Inc., $98,150 for numerous asbestos violations found at a residential renovation project at 8 Manton Terrace in Brookline. MassDEP had responded on September 16, 2016 to a complaint received from the Brookline Board of Health, which had issued a stop-work order earlier that day.

MassDEP found evidence during the initial inspection of possible asbestos-containing debris and materials scattered outside the property that was undergoing renovation and demolition work. During the inspection, MassDEP obtained samples and through testing found and confirmed the following:

·         Dry, friable asbestos-containing cement shingles had been removed from more than half the exterior surface of the residence with portions in an open top dumpster, and scattered inside the residence and outside on the ground throughout the property

·         Piping and duct work had been removed from the existing structure and the dry, friable asbestos thermal-insulation had been stripped off, with asbestos material found in the basement, in an open trash can outside, as well as scattered outside on the ground throughout the property

"The developer failed to complete the required asbestos survey, which, if done, would have indicated the wide prevalence of asbestos-containing materials present at the site," said Eric Worrall, director of MassDEP's Northeast Regional office in Wilmington. "Dry, friable asbestos is a serious public health risk that is not acceptable because the fibers can more readily become airborne and are known to pose a danger when inhaled."    

Peninsula Home Builders has agreed to fully comply with all applicable regulations going forward and will submit a list of properties it owns, how long it has owned them, and identify which of those properties has undergone demolition or renovation work. For any property with renovation or demolition work, Peninsula will provide copies of documentation to support that all proper contracts, bid proposals, bills of lading, manifests, and completion certificates were obtained. 

Peninsula will pay $30,000 of the penalty, and MassDEP agrees to suspend the remaining $68,350 provided the company does not violate any terms of the agreement. Peninsula Home Builders, Inc., is a Massachusetts corporation located in Andover. 

Indoor Air in Schools Could Add to Children’s Exposure to PCBs 

The U.S. banned PCBs nearly four decades ago, but they persist in the environment and have been found in animals and humans since then. Now researchers report in "Airborne PCBs and OH-PCBs Inside and Outside Urban and Rural U.S. Schools" in ACS’ journal Environmental Science & Technology that concentrations of airborne PCBs inside schools could result in some students inhaling the compounds at higher levels than they would consume through their diets. Exposure through both are lower than set limits, but cumulative amounts, researchers caution, could be concerning. 

PCBs, or polychlorinated biphenyls, are a group of synthetic chemicals that were used for 50 years in hundreds of products, including paint and building materials. Before PCBs were banned, industries dumped waste containing the compounds into rivers and streams, later resulting in some of the costliest environmental clean-ups in U.S. history. They continue to pose a problem, however, because they remain in soil and water and accumulate in animals. Additionally, although they are not made in the U.S. anymore, PCBs can appear in new paints and other materials as a byproduct of pigment manufacturing or in old buildings in construction materials that were made with the compounds. Studies have linked exposure—either through diet, inhalation or skin contact—with a range of health problems, including developmental issues and cancer. Children are at greater risk for potential health effects from the compounds than adults because they’re still developing. So, University of Iowa researchers wanted to see how much PCBs children were being exposed to in schools.

The researchers tested the air inside and outside of six schools. Four were within 1.5 miles of the Indiana Harbor and Ship Canal, a waterway serving major industries in the area. Keri Hornbuckle and colleagues had previously shown that the canal is a known source of airborne PCBs. Despite this source of PCBs to outdoor air for some schools, the analysis found that the concentration ranges of PCBs were higher inside all the schools (up to 194 nanograms per cubic meter) than outside, but below the current EPA recommended action level of 500 ng/m3. The PCB “fingerprints” showed that the sources of the compounds varied across schools, suggesting a combination of historical contamination and new paint as contributors. The schools were part of a study of human exposure to PCBs led by Peter Thorne. The study also estimated that in some cases, inhaling air inside these schools could lead to higher exposure to PCBs than a child’s diet. And combined, the two sources are cause for concern, the researchers say.

Fireworks and Wildfires Impact Utah’s Air Quality  

Fireworks bursting in the air may be a patriotic celebration of Independence Day, but the Utah Department of Environmental Quality (DEQ) cautions Utahns that it does lead to poor air quality.

DEQ’s Division of Air Quality (DAQ) has monitored extremely high concentrations of particulate matter (PM) pollution associated with wildfires and fireworks—an unwelcome addition to the summertime ozone pollution.  

“Every year we see significant spikes in particulate matter concentrations on July 4th and Pioneer Day,” said Bryce Bird, air quality director. “These spikes are mostly related to the smaller, neighborhood fireworks and barbeques. Exceptional events like wildfires and fireworks on holidays can make our air quality much worse—a fact that we hope people will take into consideration when planning their holiday parties.” 

Those most affected by the particulate matter pollution are children, the elderly and sensitive individuals with respiratory conditions. DAQ recommends those individuals who might find these celebrations more troublesome than fun avoid such areas directly, or at least view them from a safe distance. It is also recommended that those who are particularly sensitive stay indoors (especially during the evening) and close the windows, so that indoor air in not impacted.  

To help residents plan ahead and adjust their activities during periods of high pollution, DAQ provides hourly air quality monitoring through its UtahAir app and website, airquality.utah.gov. 

Pennsylvania Schools Named U.S. Department of Education’s 2017 Green Ribbon Schools 

At the State Capitol Building recently, environmental and educational advocates gathered to honor the School District of Philadelphia and Coebourn Elementary School—Pennsylvania’s 2017 U.S. Department of Education Green Ribbon Schools (ED-GRS).

“Pennsylvania’s Green Ribbon Schools serve as a model for teaching the value of environmental stewardship through the infusion of real-world experiences into the classroom,” said Secretary Rivera. “I applaud the School District of Philadelphia and Coebourn Elementary School for their efforts to promote conservation and awareness, and thank them for their contributions to their communities.”

Secretary Patrick McDonnell from the Department of Environmental Protection (DEP); Secretary Cindy Dunn from the Department of Conservation and Natural Resources (DCNR); Nick Semon, President of PA Green & Healthy Schools Partnership (PAGHSP); John Armstead, EPA Region 3 Deputy Regional Administrator; and lawmakers and advocates were present at the event to offer their congratulations to the schools.

“The efforts of Coebourn Elementary and the School district of Philadelphia prove that reducing our environmental impacts, educating the next generation to be good stewards of our natural resources, and saving money are all inter-connected,” said Secretary McDonnell. “Our future depends on understanding, and protecting, our environment, and these schools exemplify a stellar commitment.” 

The School District of Philadelphia was recognized for its five-year sustainability plan, during which the district has pledged to make all schools “green schools” by 2020. The district has incorporated sustainability-infused curriculum, professional development opportunities for teachers and operations staff, and monthly Education for Sustainability meetings with a committee of curriculum specialists, environmental staff, and external partners. 

Coebourn Elementary School, in the Penn Delco School District, demonstrated a commitment to sustainability education through classroom lessons, school-wide announcements, and professional development. Coebourn’s Green Committee established monthly green activities for the entire school community, and students get hands-on experience through participation in service projects and groups like the Compost Club.

“In addition to protecting the environment, and the health of students and teachers, green schools provide great opportunities for teaching young people, who are our next generation of conservationists,” said DCNR Secretary Cindy Adams Dunn. 

Since 2011, the ED-GRS program has nominated schools, districts, and institutions of higher education across the country for their dedication to reducing environmental impact and cost, improving health and wellness of schools, and providing environmental education to students. Nationally, 45 schools, nine districts, and nine postsecondary institutions were named 2017 Green Ribbon Schools.

For more information on U.S. Department of Education Green Ribbon Schools, visit the U.S. Dept. of Education’s website. 

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