KMTG Will Host MCLE Presentation On Sackett v. EPA Decision

On Friday, June 8, from 12 p.m. - 1p.m. (pacific time), Kronick Moskovitz Tiedemann & Girard (KMTG) will be hosting a brown-bag lunch MCLE event, entitled "Sackett v. Environmental Protection Agency: Judicial Review of Clean Water Act Compliance Orders." On March 21, the Supreme Court issued its unanimous decision in Sackett v. EPA, holding that Clean Water Act compliance orders are final agency action subject to judicial review under the Administrative Procedure Act. In so ruling, the high court reversed twenty years of lower court precedent holding that landowners who receive such orders have no right to challenge those orders in federal court. Damien Schiff of the Pacific Legal Foundation, lead counsel for the Sacketts, will lead a webinar presentation on the decision. KMTG will be hosting the in-person presentation. Mr. Schiff's presentation will include a short history of the case and how it ended up in the Supreme Court, a review of Justice Scalia’s opinion for the Court, and expectations for how the decision will affect EPA’s enforcement of the Clean Water Act and other environmental laws. The webinar will be moderated by Hanspeter Walter of KMTG.

This event is presented by the Natural Resources subsection of the California Bar’s Real Property Law section.  Attendees of the webinar or the in-person presentation are eligible for 1.0 MCLE credit.

To register for the webinar, click here or go to www.calbar.org/online-cle and select Tele-Seminars and Webinars.

To attend in-person, at Kronick Moskovitz Tiedemann & Girard (400 Capitol Mall, 27th Floor, Sacramento, CA 95814), please email Lindsey Ono at Lono@kmtg.com.

For additional information regarding this event, please contact Lindsey Ono or Hanspeter Walter.

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Property Owners Entitled to Judicial Review of EPA Compliance Orders

Property Owners Entitled to Judicial Review of EPA Compliance Orders

Last week, in a closely-watched Clean Water Act case, the United States Supreme Court unanimously upheld the rights of property owners to obtain judicial review of a compliance order issued by the Environmental Protection Agency (EPA). The Court's opinion may be found here.

The decision arises out of an order issued by the EPA under Section 309 of the Clean Water Act. The order declared that property owned by Mike and Chantell Sackett of Priest Lake, Idaho, contained wetlands adjacent to Priest Lake. The order found that the Sacketts violated the Clean Water Act by discharging fill material into wetlands, a violation of Sections 301 and 502(12) of the Act, and directed the Sacketts to restore their property as directed by the EPA and to allow EPA access to the property and documentation regarding the site. Failure to comply with the order exposed the Sacketts to civil penalties of up to $75,000 per day for as long as the violation continues.

The issue resolved by the Court involves the Sacketts' efforts to obtain judicial review of the compliance order. After the EPA denied their request for a hearing, the Sacketts sued in federal district court in Idaho, which dismissed their complaint for lack of subject matter justice. That dismissal was subsequently upheld by the Ninth Circuit Court of Appeals, which held that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process. The Ninth Circuit's opinion may be found here. Absent judicial review, the Sacketts were faced with the prospect of complying with an order at a cost greater than the value of their property. Alternatively, they could ignore the order and risk a civil action by the EPA, with civil penalties that grew with each passing day of alleged violation.

In reversing the Ninth Circuit, the Court held that EPA's compliance order satisfied the requirements for final agency action for which there is no adequate remedy, other than review under the Administrative Procedure Act, and that nothing in the Clean Water Act precluded judicial review. Concluding the opinion of the Court, Justice Scalia explained:

The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

But perhaps the most interesting commentary in the decision is found in Justice Alito's concurring opinion, where he commented:

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The practical effect of the Court's ruling is that the Sacketts, and others who may find themselves in the "unthinkable" predicament described by Justice Alito, will have their day in court. They will certainly be permitted to challenge EPA's claim of regulatory authority over their property. It is less clear whether, at the pre-enforcement stage, they will also be able to challenge the terms and conditions of the compliance order, as Justice Ginsburg explains in her concurring opinion.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

House Passes Bill to Prevent EPA from Regulating Farm Dust

Last Thursday, the House passed a bill that would prevent the Environmental Protection Agency ("EPA") from regulating farm dust. H.R. 1633, the "Farm Dust Regulation Prevention Act of 2011," would prohibit the EPA from  proposing, finalizing, implementing, or enforcing any regulation revising the national primary or secondary ambient air quality standard applicable to particulate matter with an aerodynamic diameter greater than 2.5 micrometers under the Clean Air Act ("CAA") for one year.

Bill co-sponsor Representative Jeff Denham, whose district covers parts of Fresno, Madera, Mariposa, Tuolumne, and Stanislaus counties, commented:

The Administration’s excessive regulations have hindered business growth and job creation for too long. I co-sponsored this legislation because it will eliminate regulatory uncertainty and provide relief for Valley small businesses and farmers. Farmers, ranchers, and Valley businesses are already subject to costly federal and state requirements to control dust. This legislation would protect rural businesses from additional, excessive red tape in order to increase certainty among our job creators.

Opponents argued that the bill is unnecessary, given the EPA's stated position that it does not currently intend to regulate coarse particulate matter. In testimony on the bill, an EPA official explained:

EPA Administrator Jackson committed in an October 14, 2011 letter that EPA is prepared to propose to keep the PM10 national ambient air quality standard (NAAQS) as it is, with no change.  This existing standard has been in effect since 1987.  I am hopeful that this announcement ends the myth that the Agency has plans to tighten regulation of “farm dust.”

Despite such assurances, the bill passed 268-150, including unanimous Republican support and the votes of 33 Democrats. But it is not expected to pass in the Senate, and would likely face a Presidential veto in any event. In a statement on the bill, the Obama Administration stated:

The bill therefore, goes far beyond its stated intent of prohibiting the Environmental Protection Agency (EPA) from tightening national standards for coarse particles, which the Administration has repeatedly explained that it has no intention of doing. This ambiguously written bill would create high levels of regulatory uncertainty regarding emission control requirements that have been in place for years.

More information regarding this legislation may be found here. Materials from a hearing before the House Energy and Commerce Committee, including a video of the hearing and witness statements, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Releases Findings of Ground Water Investigation in Pavillion, Wyoming

The Environmental Protection Agency ("EPA") recently released draft findings of a ground water investigation conducted in Pavillion, Wyoming. The report is available here. According to an EPA release, "[t]he draft report indicates that ground water in the aquifer contains compounds likely associated with gas production practices, including hydraulic fracturing."

Commenting on the investigation, Jim Martin, EPA's regional administrator in Denver, said:

EPA’s highest priority remains ensuring that Pavillion residents have access to safe drinking water. We will continue to work cooperatively with the State, Tribes, Encana and the community to secure long-term drinking water solutions. We look forward to having these findings in the draft report informed by a transparent and public review process. In consultation with the Tribes, EPA will also work with the State on additional investigation of the Pavillion field.

Some have hailed the draft report as evidence of the potential ground water impacts of fracking generally. Steve Jones of the Wyoming Outdoor Council noted that "[t]his is an important first indication there are potential problems with fracking that can impact domestic water wells. It's I think a clarion call to industry to make sure they take a great deal of care in their drilling practices." But the EPA has been careful not to generalize the results of its investigation, stating that its draft findings "are specific to Pavillion, where the fracturing is taking place in and below the drinking water aquifer and in close proximity to drinking water wells – production conditions different from those in many other areas of the country." And in an interview (video available here), EPA head Lisa P. Jackson confirmed that the particular formation in Wyoming may have contributed to the detection of chemicals in the ground water.

Encana, the company targeted by EPA's investigation, issued a statement that "[t]he EPA's draft report and current view is based on a possibility, not a conclusion built upon peer-reviewed science. The cause of the compounds in the water remains inconclusive. . . . Encana remains committed to seeing that the investigations into determining the source of the compounds found in the Pavillion groundwater are backed by sound science that is reviewed by independent peers." In a further release issued December 12, Encana identified a series of claimed discrepancies in the EPA's data and analysis, commenting that the EPA's "preliminary conclusions do not stand up to the rigor of a non-partisan, scientific-based review and that is of paramount importance to every natural gas producing community, every citizen and business that relies on natural gas and every industry worker."

The draft report will be available for a 45-day public comment period beginning December 14, following which a panel of independent scientists will subject the report to a 30-day peer review process. More information regarding EPA's investigation may be found on its website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related news coverage and commentary:

• EPA: Fracking may cause groundwater pollution
• Bad water found at fracking site
• Six Questions for EPA on Pavillion

EPA Announces Urban Waters Small Grants

The Environmental Protection Agency (EPA) recently announced that it will provide funding for projects across the country to protect Americans’ health and help restore urban waters by improving water quality and supporting community revitalization. The funding is part of EPA’s Urban Waters program, which supports communities in their efforts to access, improve, and benefit from their urban waters and the surrounding land.

According to the EPA, the purpose of the small grants is to fund projects, training, and research that will advance restoration of urban waters by improving water quality and community access. EPA expects to award $1.8 million in grants for projects across the country. Examples of projects eligible for funding may include:

• Education and training for water quality improvement or green infrastructure jobs
• Public education about ways to reduce water pollution
• Local water quality monitoring programs
• Engaging diverse stakeholders to develop local watershed plans
• Innovative projects that promote local water quality and community revitalization goals

Funding proposals must be received by EPA by January 23, 2012. The applications may be found here. Answer to frequently asked questions, such as applicant eligibility, project eligibility, and timing may be found here. EPA will hold two web-based seminars on this funding opportunity on December 14, 2011, and January 5, 2012. Registration for the seminars is available here. EPA expects to award the grants in summer 2012.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

DWR and EPA Release "Climate Change Handbook for Regional Water Planning"

Today, California's Department of Water Resources (DWR) and the U.S. Environmental Protection Agency (EPA) announced the release of "Climate Change Handbook for Regional Water Planning", a publication designed to guide water resource managers and planners as they adapt and navigate the complexities of climate change.

In announcing the release of the handbook, EPA Region 9 Administrator Jared Blumenfeld said:

Climate change will directly affect water supplies and how they are managed. With this guide, EPA is giving water agencies the practical tools they need to effectively manage this precious resource.

DWR Director Mark Cowin added:

Our scientists, engineers and planners are on the cutting edge of analyzing and preparing for the effects of climate change on our water supply. For example, climate change is considered in Integrated Regional Water Management (IRWM), one of our primary strategies for improving water management at the local, regional, and state level.

IRWM is a collaborative effort to manage all aspects of water resources in a region. IRWM attempts to address the issues and differing perspectives of all the entities involved through mutually beneficial solutions. Since 2002, California voters have approved $1.8 billion for IRWM planning and project implementation. The handbook uses the IRWM planning framework as a model into which analysis of climate change impacts and potential adaptation measures can be integrated.

The handbook also provides a checklist for identifying and prioritizing the vulnerability of local watersheds. The checklist includes questions about water demand and supply, wildlife and habitat, sea level rise, critical infrastructure, and hydropower.

The handbook includes:

• Advice on how water resource managers can take climate change into consideration
• A summary of climate change science with links to resources and tools
• Tools for evaluating greenhouse gas emissions for a project
• Tools for measuring regional climate change impacts
• Case studies of communities already incorporating climate change into water resource management

The handbook may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Announces Final Study Plan to Assess Hydraulic Fracturing

On November 3, 2011, the EPA announced its final research plan on hydraulic fracturing, or fracking, a drilling methodology designed to recover natural gas and oil from deep shale formations by injecting water, sand and chemicals to break apart the rock formations and release hydrocarbons.

EPA announced in March 2010 that it would conduct a research study to investigate the potential impacts of hydraulic fracturing on drinking water resources, under direction from Congress in its fiscal year 2010 Appropriations Committee Conference Report. EPA published a draft plan on February 7, 2011. The plan has now been finalized following a series of public meetings and a review conducted by the Science Advisory Board. EPA's response to specific Board comments may be found here.

As stated in the research plan,

The overall purpose of this study is to elucidate the relationship, if any, between hydraulic fracturing and drinking water resources. More specifically, the study has been designed to assess the potential impacts of hydraulic fracturing on drinking water resources and to identify the driving factors that affect the severity and frequency of any impacts. Based on the increasing development of shale gas resources in the US, and the comments EPA received from stakeholders, this study emphasizes hydraulic fracturing in shale formations.

Study results are expected to be released publicly in 2012. At that point, EPA expects to have results from data analysis, modeling and retrospective case studies available to inform a preliminary assessment of potential impacts of hydraulic fracturing on drinking water resources. The final report is expected in 2014, when EPA will have additional results from data analysis and modeling, as well as additional laboratory and case study results to expand its assessment.

More detail on hydraulic fracturing may be found on EPA's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related documents:

• Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources
• Press release on EPA's final hydraulic fracturing study plan
• Science Advisory Board Review of EPA’s Draft Hydraulic Fracturing Study Plan
• Questions and Answers About EPA's Hydraulic Fracturing Study

EPA Releases Final Health Assessment for TCE

On September 28, the Environmental Protection Agency announced the release of its Final Health Assessment for trichloroethylene.  The final assessment characterizes the chemical as carcinogenic to humans and as a human noncancer health hazard.

TCE is one of the most common man-made chemicals found in the environment.  A chlorinated hydrocarbon, it was widely used as an industrial solvent and is now prevalent at Superfund and other sites across the country.  EPA already has set a maximum contaminant level for TCE at 5 parts per billion, with a maximum contaminant level goal of 0 ppb.  It has also established standards for cleaning up TCE at Superfund sites throughout the country.  Additional information regarding TCE may be found at the U.S. Department of Health and Human Services' website.

Paul Anastas, assistant administrator for the EPA's Office of Research and Development, reported:

This assessment is an important first step, providing valuable information to the state, local and federal agencies responsible for protecting the health of the American people.  It underscores the importance of EPA's science and, in particular, the critical value of the IRIS database for ensuring that government officials and the American people have the information they need to protect their health and the health of their children.

TCE toxicity values as reported in the assessment will be considered in:

• Establishing cleanup methods at the 761 Superfund sites where TCE has been identified as a contaminant;
• Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;
• Revising EPA’s Maximum Contaminant Level for TCE as part of the carcinogenic volatile organic compounds group in drinking water, as described in the agency’s drinking water strategy; and
• Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Orders $60 Million Cleanup of Aerojet Superfund Site in Sacramento County

The Environmental Protection Agency announced today that it is ordering a $60 million clean-up of rocket fuel-polluted groundwater at the Aerojet Superfund Site in Sacramento County.

In its press release, the EPA stated that a 27-square mile swath of groundwater underneath and around the former aerospace facility is polluted with several compounds, including very high levels of perchlorate – a main component of rocket fuel – and a known developmental toxin.  Aerojet, under the direction of the EPA, will contain the underground plume to prevent it from spreading into nearby rivers and streams.  Future plans will also treat groundwater within the site’s boundaries.

Speaking of the order, EPA Region 9 Administrator Jared Blumental said:

This cleanup tackles the worst areas first to prevent toxic chemicals from fouling any additional water sources.  Not only is EPA holding Aerojet accountable for its pollution, but we want to assure local residents that they will have safe drinking water for years to come as the company works to restore the underground aquifer.

The Aerojet site, according to the EPA, covers 8,500 acres near Rancho Cordova, 15 miles east of Sacramento, and is about 1/2 mile from the American River.  Since 1953, Aerojet and its subsidiaries have manufactured liquid and solid propellant rocket engines for military and commercial applications and have formulated a number of chemicals, including rocket propellant agents, agricultural, pharmaceutical, and other industrial chemicals.  In addition, the Cordova Chemical Company operated chemical manufacturing facilities on the Aerojet complex from 1974 to 1979.

Additional information regarding the Aerojet Superfund site may be found at the EPA’s site overview page.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Orders $20 Million Cleanup of San Gabriel Valley Superfund Site

The United States Environmental Protection Agency announced yesterday that it has ordered Northrup Grumman Systems Corporation to spend $20 million to build a groundwater cleanup system to address groundwater contamination emanating from the former Benchmark Technology facility in the City of Industry.

According to the EPA, the site is one of the largest sources of volatile organic compound groundwater contamination in the Puente Valley area of the San Gabriel Valley Superfund site.  The system to be installed will include a series of monitoring wells and a treatment plant to contain and treat groundwater contaminated by VOCs and 1,4-dioxane.  The treated water will then be discharged as surface water or injected back into the underground acquifer.

Speaking of the order, EPA Region 9 Adminstrator Jared Blumenfeld said:

Today’s order will protect the essential drinking water supplies in the San Gabriel Valley. The treatment system is designed to intercept the most highly contaminated groundwater plume and prevent it from migrating further. Once again, EPA is taking action requiring the company responsible for the pollution to pay for its cleanup in Puente Valley.

In other California-related EPA news, the EPA announced today that it has added two California sites to the National Priorities List -- the Blue Ledge Mine (abandoned mine) within the Rogue River - Siskiyou National Forest and the New Idria Mercury Mine (abandoned mercury mine) in Idria.  Two other sites have been proposed for the NPL -- Jervis B. Webb Co. (former manufacturer) and Seam Master Industries (adhesive manufacturer), both in South Gate.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.