Environmental Litigation and Regulation

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By Lauren J. Rucinski

On Tuesday, December 11, 2018, the Environmental Protection Agency (“EPA”) and U.S. Army Corp. of Engineers (“ACE”) proposed a rule revising the definition of “waters of the United States.” The so-called WOTUS rule defines the scope of Clean Water Act (“CWA”) jurisdiction and the permitting requirements thereunder, and has been in the hot seat for the past two years under both the Trump Administration and a bevy of litigation.

The Obama Administration promulgated the WOTUS rule in 2015, which defined the term “waters of the United States” broadly to cover any lake, stream, wetland, etc. with a “significant nexus” to a navigable water.[1] The regulation was challenged in a number of federal district courts and courts of appeal.[2] Following his election, President Trump issued a February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” requesting that the EPA and ACE repeal and replace the 2015 rule. In response, the agencies repealed the 2015 WOTUS Rule, which is the first step in the process.[3] This rule proposal is the “second step” in the process.

The proposed definition of WOTUS set forth in the proposed rule would replace the 2015 WOTUS rule.[4] Under the proposed rule, the following six “clear” categories of waters would be considered “waters of the United States”:

  1. Traditional navigable waters;
  2. Tributaries;
  3. Certain ditches;
  4. Certain lakes and ponds;
  5. Impoundments; and
  6. Adjacent wetlands.[5]

Each category is supplemented by examples and definitions. Of particular note to Louisiana industry is the sixth category: adjacent wetlands. According to the proposed rule, wetlands would need to “physically touch” or be connected by inundation or perennial flow (including over a levee or berm if applicable) to navigable waters in order to bring the area under CWA rules.

Although the question still remains whether these definitions provide any more clarity than the previous “significant nexus test” under the 2015 WOTUS rule, both the EPA and ACE are optimistic. EPA Acting Administrator Andrew Wheeler stated: “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”[6]

It is important to note that the State of Louisiana through the Louisiana Department of Environmental Quality (“LDEQ”) defines its own rule for “waters of the state.” The LDEQ rule is much broader and includes “both the surface and underground waters within the state of Louisiana including all rivers, streams, lakes, groundwaters, and all other water courses and waters within the confines of the state, and all bordering waters and the Gulf of Mexico.”[7]

The proposed rule can be found here and the public comment period will be open for the sixty days following the proposed rule’s publication in the Federal Register.

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[1] 80 Fed. Reg. 32054, June 29, 2015.

[2] See “A Plethora of Cases Could Affect WOTUS Rulemaking” (June 1, 2017) available at https://www.louisianalawblog.com/environmental-litigation-and-regulation/plethora-cases-affect-wotus-rulemaking/#_ftn1 (citing and discussing e.g., United States v. Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480 (D. Mont. Nov. 30, 2015); Duarte Nursery Inc. v. Army Corps of Engineers, et al., 17 F. Supp. 3d 1013 (E.D.Cal. 2014); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 199 L. Ed. 2d 501 (2018))  

[3] 83 Fed. Reg. 32227, July 12, 2018.

[4] https://www.epa.gov/wotus-rule/step-two-revise.

[5]https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_wotus_revision_overview_12.10_1.pdf;

[6] https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition.

[7] LAC 33:IX.107.

By R. Lee Vail, P.E., Ph.D.

On December 3, 2018, the EPA published a final rule in the Federal Register (83 FR 62268) making the 2017 amendments effected as of that day.  In doing so, the EPA noted that it had no discretion in the matter as the U.S. Court of Appeals for the District of Columbia Circuit Court issued its decision vacating the 2017 Delay Rule and later issued its mandate which made the RMP Amendments now effective.  EPA further saw no good cause to open rulemaking to accept comments or delay effectiveness for another 30 days.

Many of the requirements in the amended rule contained future compliance dates (beyond 2018) and therefore this action has no effect on them.  However several requirements are now effective including:

  • Tri-annual audits cover each process units;
  • Supervisor training requirements;
  • Emergency response coordination requirements;
  • Incident investigation report and scope (i.e., near miss) revisions other than “root cause analysis provisions in §§68.60(d)(7) and 68.81(d)(7) which go into effect in 2021; and
  • Emergency Response Plan updates where appropriate.

Whereas the proposed Reconsideration Rule could roll all this back, these provisions are now in effect.

By M. Dwayne Johnson

On May 30, 2018, EPA finally promulgated modifications to its 2015 definition of solid waste rule (2018 DSW Rule).[1] EPA promulgated the 2018 DSW Rule in response to the D.C. Circuit’s decision on EPA’s 2015 definition of solid waste rule.[2]

EPA’s revisions to the definition of solid waste rule essentially implement the vacaturs ordered by the D.C. Circuit, as discussed in my prior blog on this issue.[3] That is, EPA deleted the verified recycler exclusion (VRE) and reinstated the transfer based exclusion (TBE); retained the emergency preparedness and response requirements and expanded containment requirements and applied these to the TBE; and removed the mandatory 2015 version of Legitimacy Factor 4[4] and replaced it with the 2008 version of Legitimacy Factor 4, which must be considered but is not mandatory. EPA also removed the prohibition that had made certain spent petroleum catalysts (K171 and K172) ineligible for the TBE.

In addition, EPA provided some clarity on the applicability of rules in states such as Louisiana that have been authorized to administer and enforce the state hazardous waste program in lieu of the federal program and that adopted rules similar to the VRE and the 2015 definition of legitimate recycling but have not yet been authorized for them. According to EPA, the authorization status established prior to the adoption of the state counterpart rules remains in effect and the vacaturs and subsequent reinstatement of various provisions of the prior rules “will result in state provisions that are broader in scope than the federal program as it pertains to the specific vacated provisions.”[5]

Bottom line:  Louisiana’s VRE and mandatory 2015 version of Legitimacy Factor 4 may apply and be enforced by the Louisiana Department of Environmental Quality – but not EPA – within Louisiana.

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[1] 83 Fed. Reg. 24664 (May 30, 2018).

[2] American Petroleum Institute v. EPA, 862 F.3d 50 (D.C. Circuit 2017), as clarified on rehearing, 883 F.3d 918.

[3] See,  https://www.louisianalawblog.com/environmental-litigation-and-regulation/impact-louisiana-d-c-circuits-decision-definition-solid-waste-rule/

[4] The product of the recycling process must be comparable to a legitimate product or intermediate.

[5] 83 Fed. Reg. 24664, 24666. Because the state program provisions are broader in scope than the federal program, they are not part of the federally authorized program and are not federally enforceable. 40 CFR 271.1(i)(2) and RCRA Online Document 14848.

By Maureen N. Harbourt

Facilities subject to a Part 70 air operating permit are afforded an “affirmative defense” to liability for civil penalties for releases to air that exceed technology-based permit limitations, provided they strictly adhere to both the requirements of the “upset” rule in LAC 33:III.507.J and General Condition N of the Part 70 General Permit Conditions referenced in the permit.  Because the rule puts the burden of proof on the permittee, successfully asserting the upset defense depends on documenting that each aspect of the defense is satisfied.  Subsection 507.J.1 of the rule defines an “upset” as “any situation arising from sudden and reasonably unforeseeable events beyond the control of the owner or operator, including acts of God, which situation requires immediate corrective action to restore normal operation and that causes the source to exceed a technology-based emissions limitation under the permit due to unavoidable increases in emissions attributable to the situation.”  (Emphasis added.) It goes on to provide that “[a]n upset shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.”

The four essential requirements for documenting that an upset has occurred are stated in Section 507.J.2 as:

  1. an upset occurred and that the owner or operator can identify the cause(s) of the upset;
  2. the permitted facility was at the time being properly operated;
  3. during the period of the upset the operator took all reasonable steps to minimize levels of emissions that exceeded the emissions standards and other requirements in the permit; and
  4. the owner or operator notified the permitting authority in accordance with LAC 33:I.Chapter 39.

Many facilities risk losing the protection of this affirmative upset defense by following only the reporting requirements of LAC 33:I.Ch. 39 (the LDEQ general release reporting rules), while ignoring the reporting requirements of General Condition N of the permit.  The reporting requirements of Chapter 39 require reporting only if the release exceeds a reportable quantity (“RQ”) or causes an emergency condition; however, the upset defense can also apply to releases below an RQ.  Further, Chapter 39 requires a written follow-up report only within 7 calendar days, whereas General Condition N of the permit is more stringent and requires the assertion of the upset defense within 2 working days.  Guidance published by the Louisiana Department of Environmental Quality (“LDEQ”) concerning General Condition N states:

In the event a permittee seeks to reserve a claim of an affirmative defense as provided in LAC 33:III.507.J.2, the required notification shall be submitted in writing within 2 working days of the time when emission limitations were exceeded due to the occurrence of an upset. The written notification may be faxed to meet the deadline. Verbal notification alone is not acceptable.

(Emphasis added.) We believe that an e-mail within 2 days would also meet the General Condition N requirement for written notification. Thus, for releases above an RQ, facilities desiring to preserve the upset defense should either file the written report required by Ch. 39 early (within 2 working days), or should develop a standard upset notification report addressing all Section 507.J requirements to fax or e-mail to LDEQ within 2 working days.  For releases below an RQ that do not require reporting under Ch. 39, an upset notification meeting the Section 507.J should be either faxed or e-mailed to LDEQ.

Another common error that facilities make is related to potential confusion about Ch. 39 requirements.  The provisions of LAC 33:I.3925.B.14 specify that the required written unauthorized discharge report must include “a determination by the discharger of whether or not the discharge was preventable, or if not, an explanation of why the discharge was not preventable.” Some permittees believe that an assertion that the discharge “was not preventable” is the equivalent of asserting the upset defense, but such may not be sufficient to specifically identify the event as an upset.  If the Ch. 39 written report is also going to serve as the General Condition N written assertion of the upset defense, it is recommended that the Ch. 39 report clearly state that the permittee believes the discharge was not preventable and that the event meets the definition of an upset under LAC 33:III.507.J.  The dual Ch. 39/General Condition N report should also include a description of why the event meets the upset defense.

Often initial information is indicative that an event causing excess emissions is an upset, but confirmation of that fact may come only after a root cause analysis or similar investigation.  The Ch. 39 rules allow a facility to state in the initial written report that information is not yet available to answer all of the questions required for the Section 3925 written report and to submit “updates of the status of the ongoing investigation of the unauthorized discharge …every 60 days until the investigation has been completed and the results of the investigation have been submitted.” LAC 33:I.3925.A.3.  However, General Condition N does not afford this leeway.  If an incident is suspected to be an upset, the facility should provide the 2 working day notice required by General Condition N, with an assertion that the event was an upset and a preliminary determination as to the cause.  The facility should also include a statement describing any efforts to minimize the emissions and asserting that the facility was being properly operated at the time of the event. Such General Condition N report can be updated to either confirm or withdraw the assertion of the upset defense when the investigation is completed.

The written report for any upset, in order to satisfy General Condition N, should also specify the technology-based permit limit that is subject to the upset defense.  Section 507.J does not allow an affirmative defense for permit limits based on ambient standards or any basis other than technology.  Technology-based limits are those established as Maximum Achievable Control Technology (“MACT”) under a National Emissions Standard for Hazardous Air Pollutants (“NESHAP”); Best Available Control Technology (“BACT”) under a Prevention of Significant Deterioration Permit; New Source Performance Standards (“NSPS”); Reasonably Available Control Technology (“RACT”) under a State Implementation Plan (such as the waste gas disposal rule in LAC 33:III.2115) and the like.  Pound per hour and ton per year emission limits in the permit designed to meet these technology-based standards should be considered as technology-based limits.  Section 507.J does state that the “upset defense” is not applicable to acid rain emission limitations (from 40 C.F.R. Parts 72-75).

Finally, Section 507.J.4 states that the upset defense is “in addition to any emergency or upset provisions contained in any applicable requirement.”  However, certain applicable requirements may preclude the upset defense, such as a NESHAP rule that specifically states that the requirement applies even during a malfunction (which term is described in the General Provisions of 40 C.F.R. Part 63, Subpart A, almost identically to the definition of “upset” in 507.J).  Thus, a facility should be aware that the upset defense may not be available in such circumstances.  In other cases, a NESHAP rule will provide that it is not applicable to malfunction events, but there may be additional requirements under such NESHAP rule for demonstrating that the event was caused by a malfunction (such as following a startup, shutdown, malfunction plan and/or properly reporting the malfunction under the NESHAP rule).  These NESHAP provisions are not superseded by the Louisiana upset defense rule in Section 507.J.

By R. Lee Vail, P.E., Ph.D.

On May 17, 2018, the Environmental Protection Agency (“EPA”) released a proposed revision to the Risk Management Program (“RMP”) rule following its reconsideration of the Obama era revisions.  The proposal strips out much of those additions.  According to the Rule Fact Sheet, the reconsidered rule will maintain consistency with the Occupational Safety and Health Administrations’ (“OSHA”) Process Safety Management (“PSM”) regulation, address safety concerns raised in petitions, will reduce compliance cost, and revise compliance dates.  Specifically, the proposed rule will rescind many prior changes including:

  • Requirements for third-party audits;
  • Safer technology and alternatives analysis;
  • Incident investigation root cause analysis; and most other minor changes to keep RMP consistent with PSM;
  • Most of the added requirements related to public information availability; and
  • Supervisor training requirements.

A public hearing is planned for June 14, 2018 and the rule will have a 60 day comment period.  For more information, click here.

Stay tuned as more analysis will follow in the coming weeks.

By Tokesha Collins-Wright

On December 7, 2017, the Environmental Protection Agency (“EPA”) released a memorandum entitled, “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability.”[1] In the NSR memo, EPA announced its intention to drop its long-standing position that the Agency can use its own projections of a facility’s potential future emissions in order to determine whether a major source’s proposed modification triggers Clean Air Act (“CAA”) New Source Review (“NSR”) requirements. Instead, EPA states that now “when a source owner or operator performs a pre-project NSR applicability analysis in accordance with the calculation procedures in the regulations, and follows the applicable recordkeeping and notification requirements in the regulations, [then] that owner or operator has met the pre-project source obligations of the regulations, unless there is clear error (e.g. the source applies the wrong significance threshold).”[2] EPA continues on by stating that the Agency “does not intend to substitute its judgement [sic] for that of the owner or operator by ‘second guessing’ the owner or operator’s emissions projections.”[3] In other words, EPA will now defer to owners and operators’ pre-project NSR applicability analysis as to whether NSR applies to their proposed modification projects. EPA will step in only if there is “clear error” in this analysis.

The NSR memo further indicates that, in cases where a source projects that emissions increases will be less than the NSR thresholds, EPA will focus only on the source’s post-project actual emissions in determining whether to pursue an enforcement action.[4] This means that, even though pertinent case law has confirmed EPA’s authority to pursue NSR enforcement actions based upon a source’s failure either to perform a required pre-project applicability analysis or to correctly follow the calculation requirements of the NSR regulations,[5] EPA now does not intend to pursue new enforcement cases in the absence of actual post-project emission increases that would have triggered NSR requirements.

EPA states that this memo is intended to resolve any “uncertainty” caused by recent appellate court decisions in NSR enforcement proceedings.[6] In fact, this memo is evidence that EPA has changed its stance from the one it previously took in the aforementioned NSR enforcement proceedings. In U.S. v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013) and U.S. v. DTE Energy Co., 845 F.3d 735 (6th Cir. 2017), Detroit Edison (“DTE”) began modification of a unit, after determining that the project would not trigger NSR requirements. After investigating DTE’s projections, EPA filed an enforcement action, challenging DTE’s NSR calculations and insisting that DTE should have secured a preconstruction permit. After much litigation and back-and-forth, the Sixth Circuit ultimately held that DTE was subject to enforcement for failure to comply with NSR pre-construction requirements, regardless of what actual post-construction emissions data later showed.[7] The Court found that:

…actual post-construction emissions have no bearing on the question of whether DTE’s preconstruction projections complied with the regulations.… [T]he applicability of NSR must be determined before construction commences and [] liability can attach if an operator proceeds to construction without complying with the preconstruction requirements in the regulations. Post-construction emissions data cannot prevent the EPA from challenging DTE’s failure to comply with NSR’s preconstruction requirements.[8]

On July 31, 2017, DTE filed a petition for writ of certiorari with the Supreme Court, challenging the Sixth Circuit’s ruling. On December 11, 2017, the Supreme Court denied the writ, which upholds the Sixth Circuit’s ruling (and the older EPA position) that actual post-construction emissions data does not prevent EPA from challenging a source’s failure to comply with NSR’s preconstruction requirements.

In the NSR memo, EPA states that the guidance document is not legally binding and is not legally enforceable. EPA also notes that, in the CAA scheme of cooperative federalism, state NSR programs may be more stringent than the federal program and states have primacy over the program once approved by EPA. Environmental groups have denounced EPA’s new stance on NSR permitting requirements, announcing that they may consider challenging EPA’s action in issuing the memo in court.[9]

For any owner or operator that intends to rely on the NSR memo to guide future NSR permitting decisions, please keep in mind that, regardless of the memo, citizens could still bring citizen suits for perceived NSR violations if EPA declines to do so. As such, any pre-project NSR applicability analysis should be well-documented and supported and owner/operators should follow the applicable recordkeeping and notification requirements set forth in the CAA regulations.

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[1] A copy of the memorandum is available at https://www.epa.gov/sites/production/files/2017-12/documents/nsr_policy_memo.12.7.17.pdf.

[2] Id. at p. 8.

[3] Id.

[4] See id.

[5] See U.S. v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013) (“DTE I”); U.S. v. DTE Energy Co., 845 F.3d 735 (6th Cir. 2017), cert. denied, No. 17-170, 2017 WL 3324982 (U.S. Dec. 11, 2017) (”DTE II”).

[6] NSR Memo, at p. 1.

[7] DTE II, 845 F.3d at 741.

[8] DTE II, 845 F.3d at 741 (internal citations omitted).

[9] See, e.g., https://www.nrdc.org/experts/john-walke/trump-epa-abdicates-law-enforcement-gives-polluters-amnesty.

By Troy Charpentier and Matthew Smith

After contesting the construction of the Dakota Access pipeline, environmental advocacy groups have turned their attention to the proposed Bayou Bridge pipeline in South Louisiana. The Bayou Bridge pipeline is a 162-mile-long, 24-inch-wide proposed pipeline which will cross the Atchafalaya Basin to connect facilities in Lake Charles, Louisiana to crude oil refineries in St. James Parish, Louisiana.

Earthjustice attorneys filed suit on January 11, 2018 on behalf of Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West, Gulf Restoration Network, Waterkeeper Alliance, the Sierra Club, and the Delta Chapter of the Sierra Club against the U.S. Army Corps of Engineers challenging permits and authorizations issued by the Corps under § 404 of the Clean Water Act (“CWA”) and under the Rivers and Harbors Act (“RHA”) for construction and operation of the pipeline. The environmental groups contend that the Corps did not conduct a sufficient environmental assessment under the National Environmental Policy Act (“NEPA”) or consider various factors required by the CWA, RHA, and NEPA, including reasonable alternatives to the project, public interest, environmental impact, cumulative effects, and adequacy of mitigation.

Shortly after filing suit, the environmental groups filed Motions seeking a Temporary Restraining Order and Preliminary Injunction to halt construction of the Bayou Bridge pipeline. On January 30, 2018, Judge Shelly Dick of the Middle District of Louisiana denied the environmental groups’ Motion for Temporary Restraining Order, finding that, based on the current record, the groups could not demonstrate a substantial likelihood of success on the merits of their challenge to the issuance of the permits.

In doing so, the court noted the “significant deference” afforded to the Corps’ decision to issue the permits, and that “the existence of opposing views does not render the Corps’ decision arbitrary and capricious.” Despite the contentions of the environmental groups, the court found that it is “undisputed that the Corps held a public hearing and allowed for public comments in accordance with the law.” The court further reviewed a 92 page Environmental Assessment (“EA”) performed by the Corps prior to issuing the relevant permits and found that it “clearly addresses the specific complaints of several Plaintiffs, albeit obviously not to Plaintiffs’ satisfaction.” Specifically, the court found that (i) the EA “reflects that several alternatives were addressed and considered,” (ii) a significant portion of the EA is devoted to consideration of the CWA permit guidelines which the groups contend were not adequately considered, and (iii) the EA included consideration of public interest factors. Accordingly, the court found that “Simply having an opposing opinion, or disagreeing with the mitigation plans imposed, is insufficient to establish a substantial likelihood of success on the merits, especially in light of the high deference that the law requires the Court to afford the Corps.”

The next step in the environmental groups’ attempt to halt construction of the Bayou Bridge pipeline will be the hearing on their Motion for Preliminary Injunction, which is currently set for February 8, 2018.

By Lou Grossman

On January 9, 2018, a split panel of the United States Fifth Circuit Court of Appeals affirmed an order from the district court, denying a motion to remand a matter removed under the Class Action Fairness Act (“CAFA”). The 2-1 decision In Warren Lester, et. al. v. Exxon Mobil Corp., et. al., No. 14-31383, __F3d___ (5th Cir. 1/9/2018) addressed two issues of first impression for the Fifth Circuit: (1) whether a motion to transfer and consolidate can effectively create a “mass action” removable under CAFA; and (2) if so, whether CAFA may be invoked as a basis for removal when one of the underlying suits comprising the new “mass action” commenced well before the 2005 effective date of CAFA. In affirming the action of the district court below, the Fifth Circuit answered both questions in the affirmative. A full copy of the opinion can be found here.  

The removed actions included two separate matters filed in the Civil District Court for the Parish of Orleans, State of Louisiana – Warren Lester, et. al. v. Exxon Mobil Corporation, et. al. and Shirely Bottley, et. al. v. Exxon Mobil Corporation, et. al. The Lester matter was filed by over 600 plaintiffs for personal injuries and property damages allegedly resulting from Naturally Occurring Radioactive Materials (“NORM”) in 2002. The Bottley matter, on the other hand, was filed in 2013 as a wrongful death and survival suit filed on behalf of Cornelius Bottley, a decedent-plaintiff in Lester, by his three remaining heirs. Following the selection of a trial flight in the Lester matter, which was to include the claims of Mr. Cornelius Bottley, the Bottley Plaintiffs moved to transfer and consolidate their suit with Lester. The matter was promptly removed by a defendant named only in the Bottley matter.

The Fifth Circuit rejected Plaintiffs’ argument that the consolidation was meant to attach the Bottley matter only to the pending trial flight such that it did not, as CAFA requires, propose a single trial with more than 100 individual plaintiffs. Rather, the Fifth Circuit held that the focus under CAFA is on the consolidation proposed, which in the case of the Bottley plaintiffs, was a consolidation of cases involving “overlapping liabilities, damages and questions of law and fact…the determination [of which] in either case will have great bearing on the other….” Plaintiffs’ Motion did not and, as a matter of law could not, limit consolidation to only the claims set for trial. As such, the Fifth Circuit found that it proposed a “mass action,” i.e. a joint trial of 100 or more plaintiffs’ claims, under CAFA.

More importantly, the Fifth Circuit examined the date of the proposed consolidation as determining the applicability of CAFA. Though Lester had been filed before CAFA’s enactment, the proposed consolidation was proposed years later. The Fifth Circuit found that the proposed consolidation created a new “mass action.” The Fifth Circuit reasoned that a civil action may commence before it becomes a “mass action,” and that the Bottley suit became a “mass action” when Plaintiffs proposed that the claims be tried jointly with those in the Lester matter. Bottley was a “civil action” commenced after CAFA’s effective date that subsequently became a mass action subject to CAFA’s removal provisions.

In affirming the denial of Plaintiffs’ Motion to Remand below, the Fifth Circuit established two compelling rules: (1) that a consolidation is effective to create a “mass action” under CAFA; and (2) that CAFA’s Section 9 requirements are met if one of the two consolidated actions was commenced after CAFA’s effective date.  In addition to providing guidance and interpretation regarding the commencement of a mass action, this opinion demonstrates a broad approach to CAFA.

By Tokesha Collins-Wright

On September 1, 2017, the Louisiana Department of Environmental Quality (“LDEQ”) updated the emergency order that was issued by the Governor of Louisiana on Thursday, August 24, 2017. That earlier emergency order put the entire State of Louisiana under a declaration of emergency and was to remain in place until Friday, September 22, 2017, unless terminated sooner. On September 1, 2017, the Governor issued an amended declaration of emergency that now applies only to the parishes that have been declared federal disaster areas (the “Order”). At the time of the signing of the Order, these federal disaster areas were Acadia, Allen, Beauregard, Calcasieu, Cameron, Iberia, Jefferson Davis, Natchitoches, Rapides, Sabine, Vernon, and Vermilion. If at any point additional parishes are also declared as federal disaster areas, then those parishes will also be included in the Order.

Among the matters covered in the Order:

  • Permittees with Louisiana Pollutant Discharge Elimination System (“LPDES”) permits should consider activating the upset provisions in their permits. LAC 33:IX.2701. An upset constitutes an affirmative defense to an action brought for non-compliance with such technology-based permit effluent limitations if the requirements of LAC 33:IX.2701.N.3 are met. This Order extends upset provisions to include water quality based effluent limitations. For upsets caused by Hurricane Harvey, the 24-hour oral notification is waived unless the non-compliance may endanger human health.
  • New emergency discharges, which are eligible for coverage under the LPDES General Permit LAG420000 (Short-Term and Emergency Discharges General Permit), and are located in an area that has been included in this Order are considered provisionally covered under the terms and conditions of the permit immediately and fully covered 72 hours after the postmark date or upon hand-delivery of a complete and correct Notice of Intent. The Notice of Intent shall be submitted no later than 10 business days after commencing discharge.
  • When handling and managing wastes generated as a result of Hurricane Harvey, owners and operators of solid waste management facilities and local governments shall adhere to the State of Louisiana “Comprehensive Plan for Disaster Clean-up and Debris Management” (the “Debris Management Plan”), except where the Debris Management Plan may be in conflict with the provisions of this Order, in which case the provisions of this Order shall prevail. The Debris Management Plan contains provisions and instructions for handling various types of waste material and for locating and receiving authorization for Emergency Debris Sites, which are sites that local governments and state agencies may “activate” upon the declaration of an emergency by LDEQ and the issuance of this Order.
  • LDEQ will consider, on an individual basis, requests for approval for open burning, by persons other than local governments or their agents, of storm-generated trees, leaves, vines, twigs, branches, grass, and other vegetative debris. Any such burning approved by the LDEQ must be conducted in compliance with the requirements of the Debris Management Plan and LAC 33:III.1109.D.6. Local governments and their agents shall follow the provisions of the Debris Management Plan.
  • Owners and operators of solid waste management facilities permitted by the LDEQ before Hurricane Harvey are authorized to make all necessary repairs to restore essential services and the functionality of storm water management and leachate collection systems damaged by Hurricane Harvey, without prior notice to the LDEQ. Within thirty (30) days of commencing the work of such repair or replacement, however, the permittee shall notify the LDEQ in writing, describing the nature of the work, giving its location, and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • The LDEQ authorizes the minor repair of any previously permitted stationary source of air pollution that was damaged by the Hurricane to restore it to its previously permitted condition without prior notice to the LDEQ. Within thirty (30) days of commencing such repairs, however, the permittee shall notify the LDEQ in writing, stating the location and nature of the work and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • LDEQ will consider, on an individual basis, requests for approval for, but not limited to, the following sources of air pollution:
    1. temporary air pollution control devices, such as portable flares, used for vessel and pipeline segment purging and the limited operation of facilities with damaged vapor control equipment;
    2. portable storage tanks, used for interim storage while damaged equipment is being repaired; and
    3. repairs, other than the minor repairs discussed above, of permitted stationary sources that have been damaged by the Hurricane, provided that the sources are restored or replaced with equipment that is identical or functionally.

All activities authorized under this Order must be commenced before the expiration of this Order unless otherwise provided in an authorization or permit. The deadline for commencement under any authorization or permit issued under this Order may be extended on a showing that contractors or supplies are not available to commence the work, or if additional time is needed to obtain any required authorization from the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, or other local, state, or federal agencies.

The Order is set to expire on October 26, 2017, unless modified or extended by further order. For more information, click here.

By R. Lee Vail, P.E., Ph.D. and Lauren J. Rucinski

On August 30, 2017 the D.C. Circuit denied environmental and labor groups’ request to stay the Tump EPA’s final rule delaying the Obama-era amendments to the EPA’s Risk Management Program (“RMP”) rule. The RMP rule implements Section 112(r) of the Clean Air Act and requires facilities that use extremely hazardous substances to develop and update a Risk Management Plan.

In June, the EPA Administrator Scott Pruitt signed a final rule to further delay the effective date of the RMP rule amendments until February 19, 2019 (“the Delay Rule”).  The delay allows EPA to conduct a reconsideration proceeding to review objections raised by petitioners to the final RMP amendments rule.[1]

Environmental and labor groups challenged the Delay Rule in the D.C. Circuit and then moved to stay the Delay Rule until the court takes full review of it. The groups’ motion requests a stay of the stay of the RMP rule until the court can review the merits of the Delay Rule—which stays the RMP rule. Try to say that five time fast. In any event, the D.C Circuit denied the groups’ motion to stay the Delay Rule. In denying the request for a stay, the D.C. circuit held that the environmental and labor groups had not “satisfied the stringent standards for a stay pending court review.”[2] Thus the Delay Rule will remain in effect while the D.C. Circuit reviews the merits of the groups’ challenge.

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[1] 82 Fed. Reg. 27133 (June 14, 2017).

[2] The Court also denied EPA’s motion for additional briefing time on the merits of the groups’ challenge.