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February 2010
On February 9, 2010, the Environmental Protection Agency (EPA) promulgated a final rule implementing a new primary short-term National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide (NO2) (75 Fed. Reg. 6474). The rule will be effective on April 12, 2010. EPA’s decision leaves unchanged the current annual standard for NO2 of 53 parts per billion (ppb). However, it adds a new short-term standard. The short-term standard is a one-hour standard, set at a level of 100 ppb, based on the three-year average of the 98th percentile of the yearly distribution of one-hour daily maximum concentrations. EPA concluded that the short term standard was requisite to protect the public health because it would provide protection for asthmatics and other at-risk populations against “an array of adverse respiratory health effects related to short-term NO2 exposure.” 75 Fed. Reg. 6502. The rule adds Appendix S, Interpretation of the Primary National Ambient Air Quality Standards for Oxides of Nitrogen, to 40 C.F.R. Part 50. Appendix S provides data handling procedures for both the new short-term standard and the existing annual standard. In the rulemaking EPA also amended its monitoring requirements to require monitoring at locations where maximum concentrations of NO2 are expected to occur. States must install these new monitors and prepare them for operations by January 1, 2013. The new short-term NO2 NAAQS will be immediately effective for New Source Review permitting, although no Prevention of Significant Deterioration increment or screening tools, such as a Significant Impact Level or a significant emissions rate for the short-term standard, have been set at this time. 75 Fed. Reg. 6525. If EPA later chooses to implement these standards, it will do so in a separate rule-making. States have the primary responsibility for ensuring the new NAAQS is met. EPA will promulgate initial nonattainment designations by January 2012. 75 Fed. Reg. 6521. The new monitoring systems will not be effective by that time, so EPA will make nonattainment determinations based on the three most recent years (2008-2010) of quality-assured air quality data from the current monitoring network. EPA intends to list all areas of the country not found to be in nonattainment as “unclassifiable” until the new monitoring network becomes operational. States not in attainment must revise their State Implementation Plans (SIPs) to achieve attainment no later than five years from the date they are designated as being in nonattainment.
On February 4, 2010, the U.S. Environmental Protection Agency announced a settlement with ConocoPhillips Co. for allegations that the oil company had violated the Clean Air Act. Under the agreement, ConocoPhillips will pay $175,000 in civil penalties, install pollution control equipment, and implement other emission reduction practices aimed at reducing emissions and conserving natural gas at the Argenta and Sunnyside Compressor Stations on the Southern Ute Indian Reservation in southwestern Colorado. In the administrative complaint filed simultaneously with the settlement agreement, EPA alleged that Houston-based ConocoPhillips, the largest natural gas producer in the San Juan Basin, violated provisions of the Title V Federal Operating Permit Program. In particular, the agency claimed that the company failed to install an oxidation catalyst control system at the company’s Sunnyside Compressor Station within the timetable outlined by a December 2005 permit. The complaint further asserted that ConocoPhillips had neither properly submitted semi-annual monitoring reports nor kept required emissions records. The new emission controls and operational improvements are expected to reduce air pollution emissions by more than 500 tons per year and greenhouse gas emissions by the equivalent of taking 1,100 cars off the road annually, as well as to conserve enough natural gas to heat approximately 220 homes annually.
Campbell et al. v. Tenn. Valley Auth., No. 3:09-cv-00517 (E.D. Tenn. Feb. 12, 2010) The Tennessee Valley Authority (“TVA”) has moved to for the dismissal or for summary judgment of one of the plaintiff’s inverse condemnation claims in a damages suit based on the December 2008 coal ash spill from the Kingston Electric Generating Facility (the “Facility”). The suit raises seven claims of twenty-one plaintiffs who allegedly suffered real and personal property claims from the release of coal ash sludge from the Facility. TVA’s motion is directed at only one of the claims of one of the plaintiffs. In its motion, TVA asks a federal court in the Eastern District of Tennessee to dismiss the inverse condemnation claim of plaintiff James Milt Mosley. According to TVA, the plaintiffs’ complaint fails to assert sufficient facts for Mr. Mosley’s inverse condemnation claim to withstand the pleading standard set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007). Specifically, TVA argues that the complaint does not identify the specific property interests that were taken or describe the physical invasion underlying Mr. Mosley’s claim. Furthermore, the complaint does not provide any facts demonstrating the elements of an inverse condemnation claim: that TVA intended to invade Mr. Mosley’s property interest, that such intended invasion caused Mr. Mosley’s injuries, and that TVA benefited from the invasion. Finally, TVA asks for summary judgment on Mr. Mosley’s claim based on aerial photographs showing that the coal ash sludge did not invade Mr. Mosley’s property and also a Tennessee Department of Health Public Health Assessment showing that the released coal ash had not contaminated private drinking water supplies.
The Environmental Protection Agency's (EPA) proposed standards for the management of coal ash, once expected by the close of 2009 under Administrator Lisa Jackson’s deadline, are now not projected to be published in the Federal Register until April. This change is reflected on a web page on the proposed rule at a new EPA website, its “Rulemaking Gateway,” on the status of the agency’s rulemakings launched on February 18. EPA submitted its proposal to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) on October 16, 2009. As the original review period on EPA's coal ash standards drew to a close, OIRA extended its review, which has gathered attention because of the volume of meetings it has held with stakeholders. EPA had announced on December 17 that it would not meet Administrator Jackson's deadline due to the "complexity of the analysis," after OIRA extended its review. The proposed rule was thereafter expected to issue in mid-February. Executive Order 12866 requires OIRA to complete its review within 90 days but also allows a one-time extension of up to 30 days. As it now stands, if the proposed rule is published in April, it will have been six months since EPA submitted its proposal to OIRA in October. [See January 2010, EMLF news alert, OMB Extends Review of EPA's Proposed Coal Ash Regulations Additional 30 Days] Meanwhile, on February 12, West Virginia Governor Joe Manchin issued an op-ed at his website urging EPA not to designate coal ash as a hazardous material, arguing that to do so would cause significant economic and environmental damage.
The Federal Mine Safety and Health Review Commission issued a decision on February 2, 2010, remanding consolidated contest and civil penalty proceedings to Administrative Law Judge David Barbour for further consideration on the question of whether one of the alleged violations was the result of the operator’s unwarrantable failure to comply with a mandatory standard. The case involves one citation and three orders issued under Section 104(d) to Coal River Mining, LLC for events occurring at Coal River’s Tiny Creek No. 2 Mine in January 2006 stemming from the overheating of mobile-equipment batteries that were recharging in a battery-charging station located inside the mine. The overheated batteries released carbon monoxide that in turn triggered the CO sensors, causing the mine to shut off power and evacuate. The practice at the mine was to spray the ribs and roof around the battery charging stations with a fire retardant, but in its investigation of the incident, the Mine Safety and Health Administration determined that the charging station had not been so sprayed at the time of the overheating. Several supervisors were aware of the lack of treatment, and it had been communicated to the section foreman that the battery charging station in the untreated location was not to be used. The charging station was used, however, and the overheating ensued. MSHA issued a 104(d)(1) citation, alleging that the violation was significant and substantial (“S&S”) and unwarrantable. MSHA also issued three related orders. Regarding the citation, the administrative law judge upheld the S&S allegation, but determined that the violation was not the result of an unwarrantable failure, crediting the testimony of the mine superintendent that the oversight was not a habitual practice and that the lack of chemical treatment had not been obvious. MSHA sought and was granted review. Expressly noting the heightened attention that the incident had received on account of the then-recent Sago explosion and Aracoma fire, and focusing on the citation and the question of unwarrantability, the Commission remanded for further consideration, holding that the judge had failed to address all of the relevant factors. In particular, the Commission agreed with MSHA that the judge had not given due consideration to the line supervisors’ knowledge of the lack of treatment. According to the Commission, although the noted supervisors did not have direct knowledge of the battery-charging station was in fact being put to use despite the lack of treatment, the frequency of its use and the practice of the mine to use that station during the normal course of operations should have been considered by the judge in determining whether the supervisors “should have known” it was likely to be used on the given date. The Commission also held that the judge gave little or no consideration to the duration of the violation and the degree of danger posed, and that failed to consider that the lack of obviousness of the violation might actually have increased its likelihood of occurrence. All of these factors had to be considered in determining whether the violation was the result of the operator’s unwarrantable failure to comply with the cited standard. On February 1, 2010, the Mine Safety and Health Administration published in the Federal Register a request for information and comments on the use of proximity detection systems. MSHA is seeking this information to determine whether and the extent to which such systems could or should be the subject of future rulemaking aimed at reducing accidents caused by the pinning, crushing, or striking of miners by mobile equipment. In the Federal Register notice, MSHA states that it has been working with the West Virginia Mine Safety Technology Task Force and NIOSH to evaluate the effectiveness of proximity detection systems that use electromagnetic field-based technology to warn miners when mobile equipment, such as remote control continuous mining machines, are in dangerously close proximity. According to MSHA, it reviewed 31 fatal accidents dating to 1983 involving remote control continuous mining machines, 30 of which occurred in underground coal mines, and one of which occurred in an underground metal/non-metal mine. MSHA also reviewed 67 non-fatal accidents occurring in underground coal mines from 1999-2004 involving continuous miners. The hypothesis posed in MSHA’s notice is that some or all of these accidents might have been prevented or mitigated had proximity detection systems been in place. Accordingly, MSHA is seeking comments from the mining community on the benefits, if any, of such systems, information on the design and reliability of specific systems, including anecdotal information based on experience, and viewpoints or opinions on alternative methods of achieving the same goal of reducing pinning, crushing, and striking accidents. Comments are due by April 2, 2010. See link for the full text of the Federal Register notice. Consent Decrees for South Dakota Superfund Mining Site Approved by Federal Court United States v. CEGA Services, Inc., No. 5:09-cv-5103 (D. S.D. Dec. 10, 2009). On February, 8, 2010, a federal judge in South Dakota approved a pair of consent decrees between EPA and the state of South Dakota, and two mining companies, Commonwealth Mining Company and CEGA Services, Inc., resolving claims brought against the companies under sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The complaint, filed simultaneously with a notice of lodging of the proposed consent decrees in December, sought reimbursement under the Superfund statute for past and future cleanup costs incurred by EPA and the state related to the release of hazardous materials from the Gilt Edge Mine Superfund Site in the northern Black Hills. The site, historically a gold, copper and tungsten mine, was placed on the National Priorities List by EPA in 2000. The complaint alleged that the site had been contaminated by mining conducted by a number of owners and operators over the life of the mine, which was first operated in 1876, by the dumping of metals-laden tailings and by acid rock drainage. The companies have agreed to pay $6.2 million and $5 million, respectively, but do not admit to any liability related to the site. Coal Company Asks Court to Vacate Arbitration Award Over Coal Supply Contract Central West Virginia Energy, Inc. v. Bayer CropScience LP, No. 3:10-cv-93 (E.D. Va. Feb. 16, 2010). Central West Virginia Energy, Inc. (CWVE), a wholly-owned subsidiary of Massey Energy Compnay, has filed a petition under the Federal Arbitration Act to vacate part of an award issued by an arbitration panel in Charleston, WV, to Bayer CropScience in a dispute over a coal supply contract between the two companies. Between 1997 and 2008, CWVE supplied coal to Bayer for use in a power plant located at Bayer’s Institute, WV facilities. According to the petition, the underlying arbitration involved a dispute over whether an earlier contract (executed in 1997) had been extended through 2008 (establishing a coal price per ton of $54) or whether an agreement executed in July, 2008 (and establishing a price per ton of $160) governed coal shipments during the balance of 2008. CWVE claimed that Bayer produced fraudulent documents to assert that the parties had a pre-existing agreement for 2008. CWVE now challenges the award, which ordered CWVE to pay Bayer over $10.5 million and found that the 2008 agreement was invalid and unenforceable. It argues that the panel exceeded its jurisdiction over matters concerning the validity and enforceability of the 2008 agreement, which contains its own arbitration clause requiring any claim arising out of or relating to that agreement to be settled by an arbitration panel in Richmond, VA. This case follows an earlier declaratory judgment action brought by CWVE affiliate Massey Industrial Sales in 2008 in the Eastern District of Virginia seeking to invalidate two documents Bayer claimed had extended the 1997 agreement, the arbitration initiated by Bayer in Charleston, WV pursuant to the 1997 agreement, arbitration initiated by CWVE in Richmond, VA under the 2008 agreement, and an action brought by Bayer in state court in Kanawha County, WV, seeking to dismiss the Richmond arbitration. Southern California Environmental Groups Sue BLM and FWS Over Land Management and Power Line Approval Backcountry Against Dumps, et al. v. Abbott, et al., No. 2:10-cv-00394-FCD-KJN (E.D. Cal. Feb. 16, 2010). Several Southern California community environmental groups (“Plaintiffs”) have brought suit in a federal district court for the Eastern District of California against the Department of the Interior, the Bureau of Land Management (“BLM”), and the Fish and Wildlife Service (“FWS”) based on the agencies’ actions in connection with federally-managed lands in eastern San Diego County. The Plaintiffs allege that the agencies adopted a Resource Management Plan (“RMP”) for eastern San Diego County and approved two rights-of-way for a power line project without conducting adequate environmental studies and review as required by the National Environmental Policy Act (“NEPA”), the Federal Land Policy Management Act (“FLPMA”), the Endangered Species Act (“ESA”) and the National Historic Preservation Act (“NHPA”). In response to public comments that NEPA required a supplemental environmental impact statement (“EIS”) for the RMP amendments, the BLM explained that the changes proposed by the amendments had been analyzed in the original RMP’s EIS. In September 2008, the FWS issued a Biological Opinion on the RMP. The Plaintiffs allege that this Biological Opinion was based solely on the original proposed RMP. Concurrent to the BLM’s consideration of the RMP, the BLM also considered an application for rights-of-way for a power line through eastern San Diego County. According to the Complaint, the BLM’s EIS for the power line discussed several alternative routes for the power line but did not discuss in its entirety the route that was ultimately selected and also did not adequately address certain environmental impacts of the proposed power line. The Plaintiffs also allege that the BLM’s Biological Assessment and the FWS’s Biological Opinion for the proposed power line were inadequate because they were finalized prior to the completion of any scientifically reliable surveys of endangered and threatened species affected by the power line. In addition to the separate allegations about the RPM and power line approval processes, the Plaintiffs allege that the BLM’s and FWS’s determinations for the RMP and the power line are defective because none of the EISs or Biological Opinions considered the combined effects of the RMP and the power line. The Plaintiffs argue that the EISs and Biological Opinions in connection with the agencies’ decisions were inadequate under NEPA and the ESA and therefore the adoption of the RPM and the approval of the power line rights of way violated those environmental laws and others. The Plaintiffs seek declaratory judgments and also seek injunctive relief enjoining the implementation of the RMP and the approval of any ongoing and future construction activities pursuant to the power line permits. Federal Court Denies Relief in 404 Permit Case A federal district court in the Southern District of West Virginia denied a motion by Loadout, LLC (“Loadout”) and Coal River Mining, LLC (“Coal River) for a limited stay of its November 24, 2009 order (“Order”). In the Order, the court remanded Loadout and Coal River’s permit under Section 404 of the Clean Water Act (“CWA”) because the plaintiffs had not had meaningful opportunity to comment on the permit. Loadout and Coal River subsequently filed a motion for relief seeking a limited stay of the Order as to certain complete or partially constructed valley fills. In a February 12, 2010 order, the court denied Loadout and Coal River’s motion for relief. Loadout and Coal River had argued that the valley fills for which they sought the stay had already been substantially filled and that for a variety of economic and public policy reasons the stay should be granted. The court explained, however, that allowing additional fill before the plaintiffs exercised their procedural right to comment on the permitted activity would effect a denial of that right. Furthermore, the environmental harm at the pertinent valley fills was not complete and Loadout and Coal River’s use of the fills would cause additional environmental damage. In addition, the court found that Loadout and Coal River had not obtained the plaintiffs’ consent to use the fills and had not made “a strong evidentiary showing” of the local community’s dependence on the pertinent mining activity. Based on these reasons, the court held that granting the requested limited stay would be inappropriate. The court explained that its decision to deny the stay is consistent with its own prior decisions and also the decisions of another federal court in the Southern District of West Virginia to grant or deny requests for stays of injunctions against the use of valley fills. The deadline for the parties to appeal the court’s November 24, 2009 order is March 29, 2010.
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