On Tap For Yuengling, Clean Water Act Penalties

Wastewater disposal for large breweries, mid-sized establishments, and even small craft brewers, remains a significant environmental and economic challenge. Recently, the oldest brewery in America received an unpleasant reminder of this fact.

D.G. Yuengling and Sons, Inc. was issued a complaint from the U.S. Environmental Protection Agency (EPA) alleging that Yuengling violated its discharge permit standards at least 141 times between 2008 and 2015. Yuengling holds an Industrial User (IU) permit that allows it to discharge wastewater to the publically owned treatment works (POTW), but only after it treats its discharge to limits set in its permit. Treatment of wastewater before discharge is known as, “pretreatment.” For brewers like Yuengling, pretreatment largely involves balancing pH levels and minimizing Biological Oxygen Demand (BOD) (a measure of how easy it is for microorganism at the POTW to breakdown organic materials) and Total Suspended Solids (TSS) (a measure of how much particulate material is in wastewater). High levels of BOD and TSS make it difficult for the microorganism at the POTW to do its job of breaking down organic matter and sludge. The remnants from the brewing process such as yeast, sugars, and proteins all elevate both BOD and TSS.

Verrill Dana Hosts E2Tech Networking Event

On Tuesday, July 26, more than a hundred professionals gathered outside in Verrill Dana’s courtyard in Portland, Maine for the E2Tech Summer Networking Reception.  Attendees included numerous area businesses, government officials, professionals, and non-profit leaders from across the state within the energy and environmental sectors.  Verrill Dana partner Kelly Baetz, of the firm’s Environmental Group, is a board member of E2Tech.  Verrill Dana partner Jim Cohen, of the firm’s Utilities and Energy Group, welcomed guests to the event.

Posted on July 28, 2016 .

D.C. Circuit Remands BOEM Cape Wind Lease under NEPA and ESA, Punts on MBTA Challenge

The U.S. Court of Appeals for the D.C. Circuit has dealt another setback to the Cape Wind offshore wind power project by holding yesterday in Public Employees for Environmental Responsibilities v. Hopper that the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (USFWS) violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in approving Cape Wind's lease on federal land in Nantucket Sound.

However, the Court declined to rule on the more controversial question of whether BOEM's regulatory approval of Cape Wind violated the Migratory Bird Treaty Act (MBTA) despite the fact that the parties stipulated that operation of the project would result in incidental take of protected migratory birds. The Court also declined to rule on the larger issue of whether the MBTA applies to incidental take at all.  

The D.C. Circuit referenced the 9th Circuit's recent holding in Protect our Communities Foundation v. Jewell, which rejected the same "novel argument" that the MBTA prohibits federal agencies from authorizing activities that may or will result in prohibited take under the MBTA (or the Bald and Golden Eagle Protection Act), but chose not to engage the question in any substance. Instead, in a lengthy footnote 11, the Court sidestepped project opponents' MBTA claim based on statements made by BOEM and Cape Wind at oral argument to the effect that Cape Wind would obtain an MBTA permit from USFWS prior to operation of the project. The Court acknowledged that USFWS is currently "considering" whether to adopt regulations that would allow issuance of an MBTA incidental take permit and that there is currently no established process for obtaining such a permit, but was apparently untroubled by those details.

The D.C. Circuit did note without comment that USFWS's "longstanding position has been that the [MBTA] also applies to harm that occurs incidental to, and which is not the purpose of, an otherwise lawful activity." The Court did not address the fact that this longstanding USFWS position is inconsistent with the law in the jurisdictions of the Fifth, Eighth and Ninth Circuit Courts of Appeals, which have held that the MBTA only applies to intentional take. The Tenth Circuit and, to a lesser extent, the Second Circuit have gone the other way and upheld the application of the MBTA to incidental take.

It is possible that this circuit split may be resolved before too long by the Supreme Court, but for the time being the D.C. Circuit has decided that it does not want to join the discussion.

And Cape Wind will continue to plod forward, Terminator-like in its apparent willingness and ability to withstand consecutive bludgeonings from opponents, utilities, regulators and the judiciary.  

Posted on July 6, 2016 .

Gray Areas for Green Labels: The Current State of Environmental Marketing

“Natural,” “green,” “sustainable,” “biodegradable,” – it seems like everywhere you look, from the big box stores to your local farmer’s market, products are being marketed for their environmental and healthful benefits. For a range of reasons, consumer demand for ecologically conscious or healthy products is exploding and the market is responding. The increasing demand for these goods has not gone unnoticed by federal regulators. The Federal Trade Commission (the “FTC”) has been closely monitoring the booming use of these terms in marketing and advertising materials. At the top of the marketing food chain is the term “organic,” which is tightly regulated and requires pre-certification from the U.S. Department of Agriculture. However, the majority of terms are not so stringently regulated. In fact, most terms fall within a gray area requiring no certification or verification prior to use. Such terms may appear beneficial to businesses given their low upfront investment and strong consumer demand, but use of such terms is increasingly exposing businesses to a landscape fraught with legal risk. 

U.S. Fish & Wildlife Service Proposes Revisions to Mitigation Policy

U.S. Fish and Wildlife Service (the “Service”) recently proposed revisions to its Mitigation Policy, which has been in place since 1981. March 8, 2016 Fed. Reg. 12380. The Mitigation Policy serves as “over-arching Service guidance applicable to all actions for which the Service has specific authority to recommend or require the mitigation of impacts to fish, wildlife, plants, and their habitat.” This includes development activities with a federal nexus (such as a project requiring a permit from the Army Corps of Engineers), as well as activities that implicate a host of federal statutes including the Clean Water Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act, among others. Although the 1981 Mitigation Policy did not apply to conservation of species protected under the Endangered Species Act (ESA), the new policy eliminates that exclusion and expressly recognizes that effective mitigation is consistent with and advances the objectives of the ESA. The Service expects to issue policy specific to compensatory mitigation under the ESA that aligns with the objectives of the new Mitigation Policy.