This year marks the third annual post from this Blog highlighting EPA’s enforcement and compliance figures. And while this year’s data tells a number of interesting stories, no story is larger than the potential impact of the incoming Trump Administration on EPA’s enforcement figures in 2017. With that as our backdrop—and fully admitting that this time next year, EPA’s data may look very different giving us even more to talk about—here are just some of the interesting facts and trends spotted in last year's data.
On December 2, 2016, the United States Coast Guard (USCG) issued its first Ballast Water Management System (BWMS) type-approval certificate, ushering in a new era in environmental compliance for companies operating commercial vessels with ballast water systems in U.S. waters (within 12 nautical miles). Based on public information about other, pending applications, we expect additional type approvals to issue soon.
According to the USCG, with type-approved BWMS now available, any owner/operator of a commercial vessel requesting a BWMS extension to the regulatory deadlines for compliance must provide the U.S. Coast Guard with an explicit statement supported by documentary evidence that installation of the type approved system is not possible. Previously, since no BWMS had received USCG type-approval, vessel owners/operators could apply for extensions to a vessel’s compliance date by annotating that compliance was not possible.
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.
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.
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.