Some Hopeful Signs for Kentucky’s Water

By: Tara Hester, Staff Member

Governor Steve Beshear and his Energy and Environment Cabinet as well as several other groups are working closely with the coal industry to protect Appalachian creeks and streams from the impact of surface mining. Stephanie McSpirit, Some Hopeful Signs for Kentucky's Water, Lexington Herald-Leader, Jan. 25, 2010, available at http://www.Kentucky.com/589/story/1109938.html. The recent reclamation advisory gives clear guidelines so that more excess spoil is retained on the mine site and not bulldozed into valleys and streams. Id. These guidelines are not only good for streams and creeks and the biological communities that they host but are also beneficial to communities downstream from surface mine sites. Id. Stricter guidelines with more attention on protecting stream and creek channels will help reduce the impacts associated with flooding and flash-flooding events. Id. Currently, these guidelines are not mandatory, but only "best practice" guidelines that coal mines are encouraged to follow. There is hope, however, at both the federal and state level that the guidelines will be followed. Id. In Kentucky, stricter federal standards between the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in granting 404 dredge and fill permits under the Clean Water Act will undoubtedly push more coal companies into adhering to these new reclamation guidelines. Id.

There are several things that can be done to further protect the Appalachian waters. One suggestion is more collaboration and sharing of information and data between the Division of Water and the Department of Natural Resources in evaluating the cumulative impacts of mine activities on waterways. Id. The Department of Natural Resources needs access to the data collected by the Division of Water to better review the impacts of mining activities on surface water. Id. However, it appears efforts to protect Kentucky's waters are moving in the right direction by encouraging discussion among experts and stakeholder groups in developing strategies and recommendations to better protect Kentucky's natural resources and our communities. Id.

Unknown Economic Effects of Greenhouse Gas Regulation on Agriculture May be Forestalled

By: Anthony Cash, Staff Member

The Southwest Farm Press recently reported that the American Farm Bureau Federation ("AFBF") voted at their annual meeting to oppose "cap and trade legislation," such as the American Clean Energy and Security Act ("ACES") that was passed by the House of Representatives on June 26, 2009, and any attempt by the EPA to regulate green house gases under the Clean Air Act. Top Concerns of AFBF Delegates, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/news/afbf-concerns-0115/ (last visited Jan. 21, 2010). However, commentators have pointed out that the economic impact of ACES or any greenhouse gas regulation on farmers is widely contested, with the AFBF estimating income losses to farmers at $5 Billion by 2020 and Iowa State's Center for Agricultural and Rural Development arguing that there will be very little impact to farmers. USDA Climate Bill Analysis: Ag Gains, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/legislative/laws-column-0118/ (last visited Jan. 21 2010).

With such widely varying economic analysis, it is difficult for lay persons to understand exactly what impact such legislation would have on agriculture, generally, and in the state of Kentucky, specifically. Clearly, more public debate is needed on the issue to fully vet the claims proffered by various groups. However, such a debate cannot fully occur if the Environmental Protection Agency succeeds in its attempts to regulate greenhouse gas emissions through the powers granted to it under the Clean Air Act. This action by the EPA follows from the Supreme Court case of Massachusetts v. EPA, in which Justice Stevens wrote for a five member majority. Justice Stevens wrote, "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 534 (2007).

As James Madison, speaking of the importance of the Senate in Federalist No. 63, articulated "[T]here are particular moments in public affairs . . . when the people may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens[.]" The Federalist No. 63 (James Madison). Thus, the recent renewal of attempts by Senator Lisa Murkowski of Alaska to pass legislation that would foreclose the EPA's ability to regulate greenhouse gases, regardless of the motivations behind the legislation or the wisdom of a policy regulating greenhouse gas emissions, may enable a more meaningful public discourse on the possible economic effects of such legislation on agriculture in the United States and fulfill an important function of the United States' bicameral system of legislature.

“Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality”

Appearing in JNREL Vol. 21. No.1, the following comment was written by former staff member Haley Prevatt. Staff member Andrew Leung wrote the following abstract.

In deciding Brazoria County v. Texas Commission on Environmental Quality, 128 S.W.3d 728 (Tex. App. 2004), the Texas Appellate Court upheld legislation implementing environmental speed limits and other environmental regulations propagated by the Texas Transportation Commission as not violative of the Texas Clean Air Act, the Texas Transportation Code, and the Texas Administrative Procedure Act. "Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality" examines the court's analysis and explains possible nationwide consequences of this decision.

The Federal Clean Air Act allows the Environmental Protection Agency ("EPA") to set national standards for cleanliness of ambient air, more commonly known as National Ambient Air Quality Standards ("NAAQS"). The NAAQS set permissible levels of pollutants in ambient air but do not contain a mandated method for obtaining that level. Because of the wide array of technological means available to meet NAAQS standards, each individual state has complete discretion to adopt a combination of control devices in order to meet national standards for ambient air.

In Brazoria County, the EPA found levels of pollutants elevated beyond the permissible NAASQ amounts in eight Texas counties in the Houston-Galveston area. The EPA subsequently ordered Texas to create a feasible plan to reduce pollutants to acceptable levels. In response, the Texas Commission on Environmental Quality ("TCEQ") implemented regulations which had three primary effects: (1) reducing of speed limits on state highways to 55 mph; (2) setting forth a vehicle inspection and maintenance program; and (3) prohibiting use of commercial lawn-maintenance equipment at times other than afternoon hours.

Brazoria County, one of the eight counties affected by the TCEQ regulations, brought suit against the TCEQ alleging that it exceeded its authority in promulgating the aforementioned regulations. The Court found that the implementation of the environmental speed limits ("ESLs") was an authorized act because the legislature later acted to ratify the ESLs statutorily. With respect to the vehicle inspection and maintenance and lawn-maintenance regulation, the Court held that they were beyond the scope of the Texas legislation because the regulations were implemented to meet federal NAAQS limitations.

Because the Court's decision in Brazoria County is legally sound and based primarily on precedent, it is unremarkable in that manner. One facet of the case left unaddressed by the court is the possible policy implications of the case. Here, residents of Brazoria County and eight neighboring counties were merely inconvenienced by the environmental regulations promulgated by the TCEQ. The Court's decision leaves open the possibility of more invasive regulation in Texas and the other states of the Union, perhaps even to the extent that the takings clause of the United States Constitution might be implicated.

“International Pollution: Can We Really Just Blame Canada?”

This comment was written by former Comments Editor Jamie Wilhite appearing in JNREL Vol. 21 No. 2. Staff member Andrew Leung wrote the following abstract.

In deciding Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9^th Cir. 2006), the Ninth Circuit extended liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to a foreign corporation when the disposal at issue occurred outside of the United States. "International Pollution: Can We Really Just Blame Canada?" explains the court's analysis and logic in making this revolutionary step for the environment.

The alleged polluting party in Pakootas is Teck Cominco Metals ("Cominco"), also a party to the infamous Trail Smelter Arbitration, a landmark case of international environmental law. Between 1906 and 1995, Cominco dumped smelting waste product ("slag") into the Canadian portion of the Columbia River. River currents then carried the slag and associated pollutants downstream into American territory, where the harm is alleged to have occurred. After investigation, the Environmental Protection Agency ("EPA") ordered Cominco to perform a remedial investigation/feasibility study of the area. When Cominco refused and the EPA failed to compel action, two members of the Colville Indian Tribes brought suit, seeking damages and injunctive relief.

CERCLA was enacted in 1980 by Congress as a remedial statute. "CERCLA promotes the cleanup of polluted areas and attaches strict liability for clean-up costs to those responsible for the pollution." The United States District Court for the Western District of Washington found that Cominco could be held liable either as a "generator" or an "arranger" potentially responsible party ("PRP"). The Ninth Circuit found that CERCLA liability could be extended to Cominco only if three conditions were satisfied: (1) a "facility" where the release or threatened release of hazardous waste occurred; (2) a "release" or "threatened release" of waste at aforementioned facility; and (3) a defendant that falls within one of the enumerated PRP categories.

The requirement of a "facility" is met when plaintiff demonstrates that defendant has a site where CERCLA hazardous materials are disposed of. The court found that Cominco's "facility" qualified because of the "extent of contamination in the United States associated with the Upper Columbia River." Although it in undisputed that Cominco released mining waste and byproduct into the Canadian portion of the Columbia River, courts have held that CERCLA liability only arises when there is a domestic release. To meet that requirement the Ninth Circuit found that an adequate domestic "release" occurred within American territory when chemicals and hazardous substances leached out of the slag after it had traveled downstream.

"Arranger" PRP liability applies only to "any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such party, by any other party or entity." Cominco argued that the act of disposing of one's own hazardous material falls without the scope of CERCLA "arranger" liability because it does not involve "any other party or entity." The Ninth Circuit rejected this interpretation, holding that it would seriously restrict CERCLA's reach and provide environmental agencies without recourse against companies that disposed of their own waste illicitly.

Pakootas v. Teck Cominco Metals, Ltd. is groundbreaking in that it is the first application of CERCLA to a foreign entity when the disposal of waste occurs outside of the United States. However, as a practical matter, CERCLA will not soon be extended to foreign entities across the globe whose activities will eventually have an effect on American soil.

"Environmental Law and Application in Bankruptcy Law as used in In Re Fv Steel And Wire Co."

Appearing in JNREL Vol. 22 No. 2 this comment was written by former staff member Marlene Bennett. Staff member Bryan Henley wrote this abstract.

In the United States, bankruptcy laws allow discharge of most debts in exchange for liquidating of most of the debtor's assets in an attempt to repay as much of the debt is possible. By definition, the claims sought by creditors to a bankrupt debtor exceed, in aggregate, the debtor's available assets. Often, the purpose of bankruptcy proceedings is to mete out the available assets. As one might imagine, excluding a claim has a profound effect for all other creditors. Reduction in any one debt necessarily increases the assets available for all other debts. Such a situation provides a strong incentive for creditors to bicker over debts, often so much so that the bankruptcy estate is devoured by the legal process as opposed to paying the actual debts. Accordingly, efficiency is a strong motivation for bankruptcy procedures, like estimation of debts. Parties often submit arguments praying that the court follow one method or another for estimating the amount owed under a given debt. Such was exactly the salient issue for In re Steel and Wire Co., a bankruptcy case involving environmental cleanup debt. 372 B.R. 446 (Bankr. E.D. Wis. 2007).

In 1989, the Environmental Protection Agency ("EPA") identified the Sherman Wire Company as one of the parties responsible for the environmental harm caused to the Chemical Recycling, Inc. site. This dubious distinction bound the Sherman Wire Company to bear a share of the cleanup costs of this site, which operated as a debt. In 2004, Sherman Wire Co. declared bankruptcy. The committee in charge of the site cleanup (CRI committee) urged the court to estimate the debt at nearly two-million dollars due, among other costs, the expense of hauling away mass amounts of soil. The debtor, Sherman Wire Company, contested the need to remove the soil and argued that other proposed actions by the committee could cause more harm than good. The debtor submitted an estimate of seventy-five thousand dollars. The bankruptcy court is afforded great discretion in determining the proper method to estimate a given debt, and here the court used that discretion. It chose, as a bankruptcy court, to find that the soil removal and other expensive processes proposed by the committee were not necessary.

This interaction between bankruptcy law and environmental is not uncommon. Business entities that have breached environmental regulation are unlikely to be able to predict the cleanup costs that the EPA might bring to bear. These costs can be surprisingly burdensome, as this case exemplifies. The bankruptcy court must act quickly to preserve assets. Environmental law also encourages swift action to handle compromised sites, as faster cleanup abates the risks of harm to the surrounding environment and human life. In her comment titled "Environmental Law and Application in Bankruptcy Law", Marlene Bennett thoroughly analyzes one court's synthesis of environmental law and bankruptcy. If history serves as a model for the future, this will not be the last time that these questions arise and we would all be well served in maintaining a familiarity with these issues.

Fire in the Hole: Aluminum Dross in Landfills

This Note appeared in JNREL Vol. 22. No 2. and was written by staff member Thomas Szcsygielski. Staff member Sunni Harris wrote the following abstract.

Every year there are approximately 8,300 fires that occur in landfills. Landfill fires frequently emit harmful dioxins that can cause cancer, liver damage, skin rashes, and reproductive disorders. A growing subset of these fires is caused when aluminum dross reacts with water.

Aluminum dross is the material that is left behind when aluminum ore is melted or processed. Five million tons of aluminum dross is produced per year as aluminum is often used for such commercial products as pistons, engine and body parts for cars, beverage cans, doors, siding and aluminum foil. Aluminum dross can become dangerous when it is improperly stored in landfills because it is highly combustible when mixed with water.

While aluminum dross storage can be easily regulated by legislation, it currently is not. CERCLA (The Comprehensive Environmental Response, Compensation, and Liability Act) is the primary source of federal jurisdiction over hazardous material dump sites. CERCLA allows the EPA to undertake direct removal or remedial action to protect the public health or the environment when it determines that release of a hazardous substance poses an imminent and substantial danger; however, the EPA has not used CERCLA to regulate aluminum dross because it does not consider aluminum dross a hazardous material. It is interesting that while the EPA does not officially recognize the production of aluminum dross as hazardous, it recognizes the need for its regulation.

Barmet Aluminum Corp v. Reilly illustrates this point well. In Barmet, the plaintiff operated an aluminum recycling plant that produced aluminum dross as a by-product. The plaintiff stored the dross in landfills; however, the EPA placed these landfills on a list of high priority hazardous sites under CERCLA and threatened to hold the plaintiff liable for damage to a nearby stream that originated in the waste. The plaintiff sued for injunctive relief arguing that the EPA forced them to expend resources for expensive, remedial feasibility studies before they were deemed responsible for the damage to the nearby river. The court rejected the plaintiff's argument. Barmet is a demonstration that while the U.S. EPA does not deem aluminum dross as legally hazardous, they recognize the importance of its regulation.

Going forward, there are three main suggestions to decrease the amount of fires that are started because of the improper disposal of aluminum dross: (1) continue to allow landfills to be responsible for their own dross, (2) encourage or mandate companies that produce dross as a by-product to recycle it, or (3) have the EPA classify aluminum dross as hazardous substance. The most effective solution will most likely be a combination of the aforementioned approaches.

In a recent decision...

...the United States Supreme Court upheld the authority of the United States Army Corps of Engineers (the Corps) to issue permits for the discharge of slurry, a by-product of the mining technique referred to as “froth flotation.” Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009). Overturning the Court of Appeals for the Ninth Circuit, the Supreme Court determined that slurry is, in fact, “fill material” as defined by the Clean Water Act (the CWA or the Act), and, in accordance with the CWA, the disposal of such material shall be regulated by the Corps without regard to the strict limitations imposed by the Environmental Protection Agency (the EPA) for the disposal of pollutants. Id. at 2463.

The defendant in the case, Coeur Alaska, Inc. (Coeur Alaska), attempted to revitalize an 80-year-old gold mine in Juneau using the “froth flotation” technique whereby the mine’s crushed rock would be mixed with certain chemicals, resulting in the separation of valuable minerals. Id. at 2463-2464. One of the considerations in developing this plan, as is common in most mining operations, was what to do with the mixture of crushed rock and chemicals, referred to as slurry, once the valuable minerals were extracted. Coeur Alaska determined that the most cost-efficient and environmentally-friendly method of disposal would be to deposit the slurry into a nearby lake. Id. Upon approval by the Corps to implement its plan, several environmental activist groups filed suit against Coeur Alaska alleging that the mining company did not comply with the CWA. Id. at 2463.

The Supreme Court’s decision was not a difficult one as the language of the CWA and the regulations that accompany the Act clearly give the Corps the authority to issue permits for the discharge of slurry. However, the Appalachia Restoration Act, which was introduced in the Senate in March, 2009, proposes to change the definition of “fill material” to exclude slurry. S. 696, 111th Cong. (2009). Although no major congressional action has been taken, the Bill presents another potential challenge for companies like Coeur Alaska in the development of their mining operations.

The following post was written by staff member Meghan Jackson.

EPA Sues Coal- Fired Plant Owner for violating Clean Air Act: What’s Next?

This post was written by staff member Natasha Camenisch.

Chicago has struggled with poor air quality for centuries. The repercussions of being a leading industrialized city are continuing to be felt by residents and visitors alike. To this day Chicago is still battling with their ever-growing pollution problem.

The United States Environmental Protection Agency (EPA) was created in 1970 to put a limit on the amount of pollution that can be introduced in the air. EPA History,

http://www.epa.gov/history/

(last visited Aug. 31, 2009). Congress passed the Clean Air Act in order to deal with pollution problems. On Thursday, August 28, 2009 the EPA and Illinois Attorney General sued Midwest Generation of violating the Clean Air Act. Michael Hawthorne,

Air pollution lawsuit: Federal and state lawyers sue Midwest Generation over Illinois power plant emissions

, Chicago Tribune,

http://www.chicagotribune.com/health/chi-chicago-pollution-suit-28-aug28,0,2243476.story

(last visited Aug. 28, 2009).

The lawsuit cites six plants owned by Midwest Generation that violate the Act. Federal records indicate that the smoke being released from the plants makes them some of the largest contributors to air pollution in Chicago and the surrounding areas. According to a Harvard School of Public Health study two of the plants alone in 2001 were responsible for “2,800 asthma attacks, 550 emergency room visits and 41 early deaths every year.”

Id

.

What is really interesting about this lawsuit is the fact that the Illinois EPA did not join in the suit as a plaintiff. In a previous agreement, the Illinois EPA and company officials have already agreed to clean up or close the six plants by 2018.

Id

. This federal lawsuit will probably force the plants to either shut the plants or improve them on a faster pace.

The Midwest Generation is the most recent power company to face tougher inquiry from the EPA. One of the plants began operating in 1903, while others in the lawsuit date to the 1940s through the 1960s.

Id

. The EPA finally decided that older plants should conform to modern pollution standards because of their many modifications and expansions. Two questions remain. First, whether the EPA will be able to prove Midwest Generation did violate the Clean Air Act? Second, will other older power companies face similar prosecution?