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.
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.
On October 5, in the case of Natural Resources Defense Council v. U.S. EPA, the United States Court of Appeals for the Second Circuit invalidated the process USEPA used in promulgating its 2013 Vessel General Permit that sets that agency’s standards for discharges from merchant vessels under the federal Clean Water Act, also setting aside the VGP. Pursuant to the Court’s decision, EPA must completely re-do the regulatory process from the beginning, this time formulating a new VGP taking into account factors including: (1) EPA's previous decision to set the TBELs (Technology-based Effluent limitations) at the IMO (International Maritime Organization) Standard; (2) EPA's failure to consider onshore treatment for ballast water discharges; (3) EPA's decision to exempt pre–2009 Lakers from the TBELS in the 2013 VGP permit; (4) EPA's narrative standard for WQBELs (Water Quality-based Effluent Limitations) and (5) The monitoring and reporting requirements established by EPA for WQBELs.
Eighteen states that are suing the EPA and the Army Corps of Engineers to block the regulation attempting to identify jurisdictional waters of the United States under the Clean Water Act have filed a motion for a preliminary injunction with the U.S. Court of Appeals for the Sixth Circuit. At the same time, the 18 states filed a motion to dismiss the litigation, arguing that the Sixth Circuit does not have original jurisdiction over the challenges to the WOTUS rule and that the challenges should be heard at the district court level.
The motions before the Sixth Circuit follow a preliminary injunction issued on August 28 by the U.S. District Court for North Dakota. The scope of that injunction was clarified in a September 4 order from the district court as applying only in the 13 states that are plaintiffs in that litigation. The district court did not impose its preliminay injunction nationwide, as urged by the plaintiffs, primarily out of deference to other federal courts, in particular the Sixth Circuit, where many, but not all, of the challenges to the WOTUS rule have been consolidated by the U.S. Judicial Panel on Multidistrict Litigation.
In an order issued Friday in Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-cv-402 (D. Me. Feb. 20, 2015), U.S. District Court Judge Jon Levy rejected claims that the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 wetlands permit to the Oakfield wind power project in Aroostook County, Maine violated the Endangered Species Act, the Bald and Golden Eagle Act and other environmental laws.
This is the second case in Maine, following Friends of the Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105 (D. Me. 2014), which we blogged about in June, in which the court denied wind power opponents’ attempts to invalidate an Army Corps permit based on alleged violation of BGEPA and the Migratory Bird Treaty Act. These two Maine cases join a handful of recent opinions in which federal courts have rejected similar challenges to federal approvals issued to wind power projects.