Articles, Alerts & Perspectives

Environmental Alert

(by Lisa Bruderly and Ben Clapp)

Repercussions of a Montana District Court’s vacatur of the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 continue to unfold. NWP 12 is widely utilized by pipeline developers, other energy project proponents, and utilities to authorize certain stream and wetland crossings, and any resulting discharge of dredged or fill material into waters of the United States under Section 404 of the Clean Water Act (CWA).

NWP 12 was cast into a state of confusion in mid-April, when a federal judge in Montana, presiding over a challenge to the Keystone XL Pipeline, vacated the nationwide permit, asserting that the Corps failed to comply with the Endangered Species Act (ESA) when the NWPs were last issued in 2017. The court enjoined the Corps from authorizing any activities under the permit, pending completion of Corps consultations with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, Services) regarding the permit’s impact on listed species or critical habitat. The order, issued in Northern Plains Resource Council, et al. v. Army Corps of Engineers, has resulted in an immediate halt to the review of thousands of pending NWP 12 requests and, unless stayed, is expected to result in lengthy delays and increased costs for companies engaged in the construction and maintenance of pipelines and other utility lines throughout the country.

NWP 12 Scope and Authorization

NWPs are general permits that the Corps issues under Section 404 for certain regulated activities, under certain thresholds of disturbance, which the Corps has determined will have minimal adverse environmental effects. The NWPs are published by the Corps approximately every five years, with the last publication in 2017, when 52 NWPs were issued. …

The Legal Intelligencer

(by Daniel Hido and Hannah Baldwin)

There have been several notable developments recently regarding the Pennsylvania Department of Environmental Protection’s (PADEP) water quality standards regulations at 25 Pa. Code Chapter 93. First, on Jan. 31, the Pennsylvania Independent Regulatory Review Commission (IRRC) approved updates set forth as part of PADEP’s triennial review of the state’s water quality standards. Second, significant changes to the water quality standard for manganese moved closer to becoming law when the Pennsylvania Environmental Quality Board (EQB), a 20-member independent board that reviews and adopts PADEP proposed regulations before publication for public comment, approved PADEP’s proposed rulemaking on Dec. 17, 2019. Finally, PADEP continues work on a final rulemaking with respect to several proposed Class A stream redesignations after receiving comments from the IRRC on June 6, 2019.

PADEP implements the Chapter 93 instream water quality standards by first setting designated uses of surface waterbodies in Pennsylvania, and then by implementing water quality-based effluent limitations in NPDES permits to achieve or maintain the instream water quality of the receiving water, where applicable. Thus, changes to the Chapter 93 water quality standards may result in new or revised effluent limits for any facility that holds an NPDES permit.

Updated Triennial Water Quality Standards

Under Section 303(c) of the Clean Water Act, 33 U.S.C. Section 1313(c), PADEP is required to review and modify, as appropriate, the state’s water quality standards at least every three years. The Chapter 93 water quality standards were last updated in July 2013. The current updates were first proposed in October 2017.

The revised water quality standards make several changes to Table 3 (specific water quality criteria) and Table 5 (human health and aquatic life criteria for toxic substances) in Chapter 93. …

Client Alert

(by Kevin Garber, Jean Mosites and Casey Snyder)

RGGI Rulemaking Special Informational Meeting

On April 23, 2020, DEP presented modeling results of Pennsylvania’s potential participation in the Regional Greenhouse Gas Initiative (RGGI) cap and trade program at a special joint information meeting with the Air Quality Technical Advisory Committee and the Citizens Advisory Council.

DEP utilized consulting firm ICF International’s Integrated Planning Model to estimate the effects joining RGGI would have on Pennsylvania’s electricity generation, CO2 emissions and the PJM Interconnection. DEP is proposing an initial CO2 baseline budget allowance of 78 million short tons of CO2. If Pennsylvania’s regulation becomes effective in January 2022 as proposed by Governor Tom Wolf, the 78 million short ton CO2 budget would decrease annually by approximately 2.5 tons a year, arriving at a budget of 58 million tons in 2030, which is a 25 percent decrease from 2020. DEP proposed setting aside 9.3 million allowances annually for waste-coal-fired generators.

DEP asserted during the presentation that by joining RGGI:

• Pennsylvania would realize “significant CO2 reductions” immediately beginning in 2022 and continuing through 2030 but DEP did not quantify the reductions.
• Pennsylvania would remain a leading electricity exporter at roughly historic generation levels.
• Wholesale energy prices would increase only slightly.
• Pennsylvania’s generation mix over the next decade would favor gas over coal but generation from renewables will not increase significantly.
• Pennsylvania would take a critical step toward meeting unspecified GHG reduction goals.

DEP offered relatively little data to substantiate the above claims. Its presentation did not address to any meaningful degree the effects joining RGGI will have on Pennsylvania’s economy and job market, how RGGI proceeds will be reinvested, or the estimated price of electricity at the household level. …

Environmental Alert

(by Lisa Bruderly and Kevin Garber)

In yesterday’s landmark decision, the Supreme Court ruled by a 6-3 majority that, in certain circumstances, discharges of pollutants through groundwater to navigable waters could be required to have an NPDES permit under the Clean Water Act (CWA). While the Court remanded the Hawai’i Wildlife Fund v. County of Maui matter to the Ninth Circuit to reconsider the specific issue of injected wastewater that reached the Pacific Ocean through lava tubes, it more broadly provided a new “functional equivalent” test to address whether the CWA requires an NPDES permit when pollutants originating from a point source are conveyed to navigable waters by a nonpoint source, such as groundwater.

Rejecting the Ninth Circuit’s “fairly traceable” test as being too broad, Justice Stephen Breyer, writing for the majority, more narrowly held that an NPDES permit is required “when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge” (emphasis added). The Court’s new test for CWA liability has far-reaching implications, creating potential exposure for agency permitting and enforcement and citizen suit pressure under many scenarios where pollutants may intentionally or unintentionally enter surface water by way of groundwater through Class V injection wells, coal ash ponds, waste impoundments/lagoons, pipeline releases, existing groundwater contamination, spills and releases to ground, leaking underground storage tanks and, even, septic tanks.

New “Test” Creates More Questions Than Clarity

Subjective, conflicting interpretations of the new “functional equivalent” test are inevitable. Focusing primarily on considerations of time and distance, Justice Breyer offered the following two contrasting examples of how the test might be applied: (1) “where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies;” and (2) “if a pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”

The Court offered that other factors, including the following, “may prove relevant,” depending on the specific circumstances:

• The nature of the material through which the pollutant travels;

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Environmental Alert

(by Alana Fortna)

As addressed previously in an article published by The Legal Intelligencer, one key case to watch before the U.S. Supreme Court is Atlantic Richfield Company v. Christian, Case No. 17-1498.  On Monday, April 20, 2020, the Court issued its Opinion in this case (590 U.S. ___ (2020)), which included two Dissenting Opinions and opened the door for potential private party litigation involving proposed alternative cleanup plans at Superfund sites.  While the likelihood of success on such future litigation may be questionable given the position of the United States as an amicus curia in this case, any litigation potential could still be disruptive to Superfund site cleanups, even if it is ultimately unsuccessful.

The Atlantic Richfield case involves one of the oldest Superfund sites in the country—the Anaconda Copper Smelter Site, which covers an area of approximately 300 square miles.  Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA), Atlantic Richfield has been performing investigation and remedial activities at the Site under the oversight and approval of the United States Environmental Protection Agency (EPA) for the past 35 years.  Landowners in and around the Site sued Atlantic Richfield in Montana state court seeking, among other things, restoration damages under state law to restore their properties to their pre-contamination state.  The landowners pursued an alternative cleanup plan that sought remedial action above and beyond the EPA-approved remedy in both scope and cost.  The Montana Supreme Court agreed that the landowners could pursue their restoration claim against Atlantic Richfield despite statutory arguments to the contrary.  The U.S. Supreme Court granted certiorari to address the following issues: (i) whether CERCLA strips the state court of jurisdiction over the landowners’ state law claim for restoration damages, and (ii) if not, whether CERCLA requires the landowners to seek EPA approval for their proposed remediation plan.  …

Construction Alert

(by David White, James Miller and Marc Felezzola)

As part of a three phase plan for Pennsylvania overcoming the COVID-19 Pandemic, Governor Tom Wolf announced on Monday, April 20, 2020 that limited construction activities may recommence on May 8, 2020 for non-exempt projects in Pennsylvania.  Although the full details regarding the plan have not yet been released, it is clear that all construction work must comply with the Governor’s and Secretary of Health’s April 20, 2020 amendments to their business closure orders and must be in strict compliance with the administration’s guidance referenced in those amendments, all of which are available below:

• Governor Wolf’s April 20 Business Amendment
• Health Secretary’s April 20 Business Amendment
• Health Secretary’s Health Safety Measures for In-person Operations
• Life Sustaining Business FAQ
• PA Industry Operation Guidance (Matrix)

While the details regarding the limited recommencement of construction activities have not yet been released, it is believed the Governor will issue the following guidelines:

• For residential construction, only four workers will be allowed to be on the jobsite at one time.

• For commercial construction, four workers will be allowed on a jobsite at one time for projects of 2,000 square feet or less; and for every 500 square feet, an additional worker may be added. This would apply to all construction, even the current healthcare and waiver approved projects. For example: a 5,000 square foot construction project will be allowed ten workers on site (4 workers for 2,000 SF and an additional 6 workers when considering the 3,000 SF).

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