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.
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.
Section 105(a)(8)(B) of CERCLA sets forth the outlines of the scoring system used by the U.S. Environmental Protection Agency (the “EPA”) Superfund program to assess and rank the potential and actual threat associated with sites across the country. The scoring system is known as the Hazard Ranking System (the “HRS”). The HRS was originally adopted in 1982, but was subsequently amended in 1990 in response to the Superfund Amendments and Reauthorization Act.
The HRS groups information obtained by EPA from its Preliminary Assessment and Site Inspection into four predetermined categories or “pathways.” The pathways include: (1) groundwater migration; (2) soil exposure; (3) surface water migration; and (4) air migration. EPA then weighs the four pathways against three individual factors grouped into three categories: (1) the likelihood of a release; (2) waste characteristics; and (3) “targets” or nearby human population and sensitive environments. EPA next assigns numeric values to each pathways and plugs the numbers into a magic formula that spits out a score ranging from 0 to 100. Any site that receives a score of 28.50 or above must be placed on the list of sites that require the most urgent attention, known as the National Priorities List (the “NPL”). Since 1991, EPA has added, on average 30 sites to the NPL each year. That number, however, may begin to rise soon.
As it does each year, the U.S. Environmental Protection Agency (the “EPA” or “Agency”) recently released its annual enforcement statistics for the past year. As the Agency has been saying throughout Administrator McCarthy’s tenure, it is focusing on high visibility enforcement with greater environmental (and financial) bang for its buck. The data is living proof—fewer actions, but larger penalty figures.
And as has been highlighted on this Blog in the past, EPA’s year-end enforcement website is a treasure-trove of information. Statistics are broken down by region, state, and statute, making it even more useful. For those of us in Region 1, it’s interesting to note that the Agency initiated just 104 cases in the past year; the lowest number in the country. Contrast that with Region 6 which topped the list by initiating 362 enforcement cases in 2015.
My personal favorite is the interactive “Case Map” because large enforcement trends are easy to spot. For example, within Region 1, Connecticut was the only state where enforcement actions increased (24 in 2014 v. 32 in 2015). It also seems as if the large majority of water violations across the country are clustered in the northeast corridor and the majority of air violations occur in the upper Midwest states with heavy concentrations around Chicago and Detroit.
Since everyone loves a table, here is a data compilation for four New England states, complete with a handy juxtaposition against 2014 data. Enjoy the numbers and check back again next year for new trends and a hearty three-year comparison!
|Total Enforcement Actions||Water||Air||Waste||CERCLA||Chemical||Criminal||Federal Facilities|
Some lawyers say there is no harm in piling on when adding causes of action to a law suit. Assuming the claims are defensible, this may be true. Opponents of the Environmental Protection Agency’s (“EPA” or “Agency”) Clean Power Plan (“Rule”), however, seem to believe that their suit chock-full of legal challenges may be hindering their efforts to receive an expeditious ruling.
Yesterday, the group of 27 states, utilities, trade groups and unions, filed a motion with the federal Court of Appeals for the District of Columbia Circuit requesting that the Court “bifurcate the briefing between the fundamental legal issues and individual record-based challenges.”