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| Meet Phyllis Harris, Part Two From the Chair Enforcement Targeting U.S. Supreme Court decides major clean air act case regarding ozone and particulate matter standards |
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Meet Phyllis Harris, Part Two Interview conducted by Steve Stout Phyllis Harris is the Regional Counsel and Director of the Environmental Accountability Division for the U.S. EPA Region IV. Steve Stout interviewed Ms. Harris on May 2, 2000. This is the second part of the interview, the first of which was presented in the immediately previous issue of the newsletter. Ms. Harris has unique duties as both head of the Office as Regional Counsel and Director of the Environmental Accountability Division. This portion of the interview addresses the concept of targeted enforcement. Again, we extend appreciation to Ms. Harris for this interview. Stout: Could you describe what you mean by “targeting”? Harris: Targeting involves prioritizing your actions. It means looking at areas, be it geographic, be it based on sectors where you are finding significant risk to human health and the environment. For example, on the civil side, based on data we received, we decided to target the wood products industry several years ago for PSD1 (prevention of significant deterioration) violations. We noticed a tremendous amount of increase of Toxics Release Inventory (TRI) emissions2, production numbers had gone sky high, yet we saw very few instances where these facilities had actually gone out and asked for new permits or permit modifications and we found out there had been significant modification such that it would trigger PSD, pursuant to investigations of that targeted sector. Based on that information, we are able to bring many of those companies to the table and we worked out settlements. We are finding that once we look at the data, I must say 90% of the data that we have in our data bases is provided by the states, in certain areas and issues you can see patterns that if you go beneath the surface and do very thorough investigations, coupled with inspections, you will see some trends in some particular targeted sectors that will lend you to believe that there are very high rates of non-compliance. So that is what I mean by targeting. We have very good capabilities here in the Region, and are finding that in some areas where we target or look at specific facilities, the data will show that X facility has every year increased emissions by 10% pursuant to TRI, has increased production, yet we find no request to modify a permit or things like that. Nine times out of ten when we go back to do investigations we find that there have been some violations. Many times when we pull the data, we can put in indicators or things to ask questions or queries, like give me all of the facilities that have not been inspected in 5 years, etc. Based on that information we decide who should be inspected, who should not be inspected, etc. Stout: This is very interesting. It sounds like you are looking for discrepancies or disparities between data, such as water quality, and then the permits of people who are inclined to discharge into that particular stream. Harris: Exactly. You can do all of those kinds of things. It is all about the public’s right to know. Interestingly, the public has accessed too much of this and that is the basis of many of the citizen suits we see. So, we are just trying to get on the front end of this and identify up front the facilities that we should be taking a look at. For example, if we know holistically, that is EPA, that we want to do 100 inspections in a given time period, it makes more sense to prioritize the resources that you have, given the data, which may show issues that we should be looking at. Stout: You mentioned the wood products industry, and I know there is some action right now, where EPA has targeted the utility industry. TVA in particular in Region IV. Besides the utility sector and the wood product sector are there any other areas that are targeted? Harris: We have also looked at mini mills, the iron and steel sector, CAFOs (Confined Animal Feeding Organizations) where we see some discharges. You can argue one way or the other, whether it should or shouldn’t be permitted, but a discharge is a discharge and if you continue to have them at some point they should be permitted. So, we’ve tried to get a handle on those kinds of facilities where you continuously see discharges but there are no permits in place. Every 2 years, each of the Regions, in concert with Headquarters, determine the areas we should be prioritizing our resources. In this particular 2 year cycle, we have determined power plants, overall issues related to PSDs, CAFOs, wet weather issues in general, be it CSOs, SSOs, those kinds of issues. Stout: Is that an EPA decision? Harris: Yes, and we do consult with our states as well before we decide what we are going to do nationally, and we even try to break it down more as to regions. We do consult with the states and get input from the states from them for a regional perspective on what we should be looking at. Return to top |
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From the Chair The Legislature is in session and my year in the chair is more than half over. What have we done for you lately? Well you’re reading this newsletter so I guess that answers part of your question. The Tennessee Bar Association has also been active in the response to a proposal to raise professional privilege tax for lawyers from $200 to $2,000 per year. This much-publicized bill probably does not have a real chance of passage, but it is a symptom of public interest law backlash that has ramifications for each of us involved in the field of environmental law. While hardly a Nashville insider, I have followed with great interest discussions on TBALink® (www.tba.org) and the newspapers concerning the proposal to raise the fee and the reasoning behind it. It appears that the Senator who introduced the bill thought public interest lawyers at the Tennessee Justice Center are responsible for destroying Tenncare. The Tennessee Justice Center receives much of its funding from TBA. He further reasoned if TBA members can afford to fund the Tennessee Justice Center’s efforts, then they (including public interest attorneys) can work even harder and defray the huge costs to the State by paying a higher tax and leave the poor State of Tennessee alone. I began to think about our role in the environmental regulatory process. How much do we, as environmental attorneys, cost the great state of Tennessee? Wouldn’t the same legislative logic apply to environmental advocates questioning and litigating decisions on regulations, permits, highways and air pollution plans? The State could clearly provide a more economic result if there were no hard questions to answer or no alternatives to consider. We must spend all of our time thinking up these questions to bedevil, befuddle and bother the government officials fulfilling the clear legislative mandate they have been entrusted to carry forward. Maybe $2,000 is too low a price when you add up all these pesky costs the State must bear from the advocates for a cleaner environment or a rational regulatory process. But is that not the reason the founders of this nation wanted the freedom to express our grievances embodied by the Constitution? Of course it is. We, as a part of the larger organization, must provide the opportunity for this type of expression, as it is exactly that interchange which results in the best solution to the problems we face. Maybe not the cheapest, certainly not the most timely, but usually the most correct one. It is this basic idea that led to the strong response the Bar Association mounted on the proposed increase. It also means we must assure ourselves that we can do all that is in our power to improve the system while allowing all voices in the environmental choir an opportunity to sing. Off my soapbox, we have been working with the other Bar Associations in the Southeast to have a successful Region IV update seminar in May and the program looks strong and relevant. Also, the Solid/Hazardous Waste Conference is May 9-11, 2001 in Gatlinburg, TN and a registration form is included in this newsletter issue. We have an ongoing need to renew membership information and email lists, so let us know if you have a change so we can stay in touch. We welcome your participation and suggestions. Please note my new email address and telephone number: Cgray@co.shelby.tn.us and (901) 379-7845. — Carter Gray, 2000-2001 Chair A graduate of Dartmouth College and the University of Kentucky Law School, Carter has been active in environmental law and related regulatory issues since 1980. Beginning with a commercial hazardous waste management company as in house council and continuing to the position of manager of the Memphis and Shelby County Health Department’s Pollution Control Program, Carter has enjoyed both the private and public view of environmental questions. He is married and has a 12-year-old son. Return to top |
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Enforcement Targeting Based on the foregoing discussion about enforcement targeting, a recent report released by the EPA Region IV office illustrates the concept and how it has been applied in the enforcement accomplishments in the prior fiscal year. The following information is taken from the EPA Region IV website at http://www.epa.gov/region4/. Enforcement Cases and Penalties EPA Region 4 continued to maintain a strong enforcement presence in FY2000 by referring 65 civil cases to the Department of Justice (DOJ), a large part due to the initiative against coal-fired utilities (see below). In addition, the Region almost tripled the number of Administrative Orders issued in FY2000 due to an initiative to enforce the Safe Drinking Water Act (SDWA) Consumer Confidence Reports Rule. Of the civil and administrative cases that were concluded in FY2000, $5,737,510 in penalties were assessed, $127,592,840 in injunctive relief was imposed, and 1,392,508 pounds and 290,346 gallons of pollutants were eliminated. Coal Fired Utilities Initiative The Clean Air Act (CAA) enforcement program has remained fully engaged in the coal-fired utility initiative with the Office of Enforcement and Compliance Assurance (OECA), EPA Regions 3 & 5, DOJ, the states and the utilities themselves. Regional progress during FY2000 includes referrals of four parent companies, Southern Company, Tampa Electric Company (TECO), Duke Energy Company, and Carolina Power and Light to DOJ, and the subsequent support of the cases as they proceed through the judicial system. Region 4 was intricately involved in the TECO settlement which resulted in a Consent Decree filed in District Court (see Case Summaries for details of the settlement). Region 4 also issued an administrative order to the Tennessee Valley Authority3, and worked closely with OECA and DOJ in preparing for the Environmental Appeals Board hearing, and the written response to petitions filed in Circuit Court. New NSR/PSD investigations have commenced on all of the remaining coal-fired utilities in the Southeast with information request letters being sent during last quarter of the fiscal year. Resource Conservation and Recovery Act (RCRA) Permit Evaders The RCRA enforcement program supported national efforts in ensuring that dangerous treatment and recycling practices are eliminated and that illegal operations do not continue to economically undercut those facilities that operate within the law. As part of this, the RCRA program targeted inspections at Ferrous and Non-Ferrous Foundries, where 60% of the facilities were found to be in significant noncompliance. This resulted in one EPA civil referral to DOJ as well as one RCRA § 7003 Imminent and Substantial Endangerment Order. The other enforcement cases are being handled by EPA or the State agencies. EPCRA National Nitrate Compliance Initiative The EPCRA National Nitrate Compliance Initiative was a self-disclosure solicitation targeted at facilities which reported nitric acid in the TRI reports, but failed to report nitrate compounds. Forty-one companies agreed to settle with the Region and 26 were multi-regional cases referred to OECA. An additional 20 companies were determined to be in compliance. EPA Region 4 filed 25 Compliance Agreements and Final Orders (CAFOs) in FY2000 and projects completing all of the CAFOs during the first quarter of FY2001. Consumer Confidence Report Enforcement In 1996, Congress amended the Safe Drinking Water Act and added a provision requiring that all community water systems deliver to their customers a brief annual water quality report. This report is called the Consumer Confidence Report (CCR). The first CCR was to be delivered to the consumers by October 19, 1999. The rationale for the CCR is that consumers have the right to know where their water comes from, what is in their drinking water and how safe it is. The reports are based on calendar-year data, so the first report included data collected between January and December 1998. In 2000 and the years following, the systems must deliver the report to consumers by July 1. Because of the timing of the rule, several states in the nation were unable to obtain primacy for CCR by the October deadline. The EPA Regions decided to develop enforcement documents that would show consistency across the country. Region 4 volunteered to develop model plain language enforcement actions, including a notice of violation (NOV) and an administrative order (AO) for distribution and use throughout the regions. The documents were modified by each region to address their particular needs. As of the October 19, 1999 deadline, Tennessee was the only Region 4 state to have primacy and South Carolina and Georgia had primacy applications pending final approval. Based on the inability to obtain primacy and the desire to implement the rule in their own states, the Region 4 States made agreements with the EPA Drinking Water Program. The states agreed to perform most of the activities associated with the CCR and to forward the names and addresses of all facilities that were not in compliance by the deadline to EPA.4 As a result, Alabama referred 15 facilities, Florida referred 50 facilities, Mississippi referred 36 facilities, Kentucky referred 14 facilities and North Carolina referred 184 facilities to the Region for enforcement. Kentucky, Mississippi and North Carolina issued Notices of Violations to the systems in their states that had not complied. The Region 4 Drinking Water Enforcement Team consisting of four employees, in turn, issued 65 NOVs to systems in Florida and Alabama, and 263 AOs to systems in Florida, Alabama, Kentucky, Mississippi and North Carolina. Footnotes: 1. Prevention of Significant Deterioration (PSD) is a Clean Air Act, 42 U.S.C. §§ 7401 et seq., program that involves permitting new and modified sources of pollution in an effort to maintain good air quality in areas that are not in non-attainment for National Ambient Air Quality Standards (NAAQS). 2. Toxic Release Inventory (TRI) is a requirement of the Emergency Prevention and Community Right to Know Act (EPCRA), 42 U.S.C. §§ 11001 et seq. (1986). EPCRA was enacted by Congress as the national legislation on community safety. This law was designed to help local communities protect public health, safety, and the environment from chemical hazards. Companies are required to submit information about releases of certain chemicals. By comparison of the reports for the TRI data, EPA could tell if there were increases in chemical emissions that would be indicative of modifications to air pollution sources that should have triggered new constructions permit applications under the PSD program. 3. On November 13, 2000, the Tennessee Valley Authority (TVA) filed a Petition for Review before the Eleventh Circuit Court of Appeals of the September 15, 2000 Final Order on Reconsideration issued by EPA’s Environmental Appeals Board (EAB). The authority from the Administrator directing the EAB to reconsider an administrative compliance order (ACO) issued by EPA Region 4 to TVA on November 3, 1999, (and amended several times thereafter). In the Final Order, the EAB determined that there was sufficient proof to find that TVA had violated the Clean Air Act’s (CAA) New Source Review (NSR) requirements of Parts C and D of Title I. TVA has asked the Court to hold this petition for review of the EAB decision in abeyance pending the Court’s ruling on the prior petitions for review on the ACO itself and EPA’s decision to grant reconsideration of the order. EPA Region 4 issued an ACO to TVA on Nov. 3, 1999, as part of EPA’s enforcement initiative against coal-fired electrical generating plants of several utility companies. The TVA ACO, issued by EPA under Section 113(a) of the CAA, was amended several times pending discussions between TVA and EPA. On May 4, 2000, TVA filed a Petition for Review of the ACO and its amendments before the Eleventh Circuit Court of Appeals. In addition, by letter dated May 4, 2000, EPA Region 4 notified TVA of its decision to grant reconsideration of the Order. TVA filed a separate petition for review of the EPA’s May 4th letter on the basis that EPA had thereby denied TVA’s request to withdraw or stay the Order. Other parties, i.e., Alabama Power Company, Duke Energy Corporation, and the Tennessee Valley Public Power Association (TVPPA), also filed petitions for review of the Order and the May 4th letter. Georgia Power Company intervened in these petitions, which have been consolidated by the Eleventh Circuit. EPA has filed a motion to dismiss all these petitions which has not yet been decided by the Court. The Nov. 13, 2000 petition by TVA seeks review of the Sept. 15, 2000, EAB Final Order on Reconsideration. The proceedings on reconsideration were conducted de novo with an administrative evidentiary hearing held July 11-17, 2000, before Administrative Law Judge Andrew S. Pearlstein, who had been appointed by the EAB to oversee limited discovery, prehearing, and evidentiary hearing proceedings. At the hearing, EPA and TVA presented exhibits and live testimony and cross-examined witnesses. The EAB Final Order set forth detailed findings of fact and conclusions of law regarding the nine TVA power plants that were the subject of the alleged violations in the ACO, sustaining in part and vacating in part the various allegations of violations and requests for relief set forth in the ACO. The EAB Final Order rejected TVA’s primary defense that all of its projects were exempt from NSR requirements as “routine maintenance, repair, and replacement,” finding instead that each of the fourteen projects at issue constituted a “physical change” under the CAA and applicable regulations. The Final Order found that EPA had demonstrated, by a preponderance of the evidence, that a significant emissions increase would occur as a result of the projects for at lease one pollutant at all but one of the units identified in the ACO. Specifically, the EAB found prevention of significant deterioration (PSD) and nonattainment NSR violations and New Source Performance Standards violations for certain identified TVA plants. 4. As noted in EPA’s report, Tennessee was the only state to have primacy for its drinking water program as of the 1999 deadline. Tennessee should be commended for this accomplishment. In addition, Tennessee obtained a higher compliance rate than its sister states in Region IV on the level of compliance for the Consumer Confidence Reports that were targeted for this enforcement initiative. According to Lee Keck with the Tennessee Department of Environment & Conservation, Division of Water Supply, Tennessee poured a lot of effort into outreach and assistance, enabling local water systems in this state to be prepared and to comply with this new requirement. This effort was very effective as evidenced by the fact that most water systems in Tennessee complied by making these reports on time. Only in a couple of cases was there the need for enforcement. In those cases TDEC issued administrative orders but the systems filed the necessary reports and came into compliance within a matter of months from the reporting date. For more information on the Division of Water Supply and other divisions with TDEC, consult http://www.state.tn.us/environment/. Return to top |
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U.S. Supreme Court decides major clean air act case regarding ozone and particulate matter standards On February 27, 2001, the U.S. Supreme Court issued its much anticipated decision in Whitman v. American Trucking Associations, Inc.1 This decision consolidates the appeal by EPA and cross petition by industry groups to the D.C. Circuit Court of Appeals’ 1999 decision2 reviewing challenges to EPA’s 1997 revision of the particulate matter and ozone National Ambient Air Quality Standards (NAAQS)3 under the Clean Air Act (CAA). The unanimous decision, written by Justice Scalia, was a win for EPA on two major issues, although the case was remanded to the D.C. Circuit to hear challenges to the revised NAAQS that were preserved in that court. As framed by the Supreme Court, the following four questions were before the Court: 1. Whether EPA may consider the costs of implementation in setting the NAAQS; 2. Whether CAA § 109(b)(1) delegated legislative power to EPA in contravention of the Constitution; 3. Whether the Court of Appeals had jurisdiction to review EPA’s interpretation of the key statutory provisions instructing EPA how to implement the revised NAAQS; and 4. If so, was EPA’s interpretation permissible? On the first question, industry sought to overturn twenty years of case law and have the Supreme Court find that EPA should consider costs in setting the NAAQS. The Supreme Court soundly rebuffed industry and upheld EPA’s position and earlier court decisions that costs were not to be considered. The Supreme Court stated, “The text of § 109(b) … unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA.”4 On the second question, the Court of Appeals had held that CAA § 109(b)(1) delegated legislative power to the Agency in contravention of the Constitution’s “nondelegation doctrine” because EPA had interpreted the statute to provide “no intelligible principle” to guide the exercise of Agency discretion. The lower court remanded the rulemaking to the EPA to see if it could avoid an unconstitutional delegation by adopting a restrictive interpretation. The Supreme Court disagreed with the lower court; it determined that CAA § 109(b)(1) did not delegate legislative powers and found that the limits imposed on EPA by Congress were consistent with comparable statutory provisions approved in other cases. The Court looked specifically to the language of CAA § 109(b)(1), which requires that EPA set NAAQS at levels necessary to protect human health with an adequate margin of safety. The Court concluded that this language did in fact set limits on EPA’s discretion and “fits comfortably within the scope of discretion permitted by our precedent.”5 On the third question, the Court rejected EPA’s position that its ozone NAAQS implementation policy was not agency “action,” was not “final,” and was not ripe for review by the Court. The Court found EPA’s policy constituted “final agency action” subject to judicial review, because the action under review marked “the consummation of the agency’s decisionmaking process.”6 The Court focused on the finality of EPA’s decision (after concluding that the word “action” was so broad as “to cover comprehensively every manner in which an agency may exercise its power”7), and decided that EPA had rendered its last word on the matter. Thus, the promulgation of revised ozone NAAQS was final agency action. Finally, in reviewing EPA’s policy on how to implement the ozone standard in light of apparent inconsistencies between different statutory provisions in the Clean Air Act (contained in 42 U.S.C. §§ 7501-7511f), the Supreme Court upheld the industry groups’ challenges to EPA and found EPA’s interpretation of the statutory provisions impermissible. The statutory language sets forth general provisions for nonattainment8 as well as specific provisions for ozone nonattainment classifications added in the 1990 Amendments9. EPA argued that the specific provisions applied only to the 1-hour ozone standard. The Court found that EPA’s rendering of those provisions as “utterly inoperative” to the 8-hour standard to be “over the edge of reasonable interpretation.”10 The Court remanded the case to the D.C. Circuit for resolution of any remaining issues, and if the standards are otherwise upheld at that level, they will eventually go back to EPA to develop “a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS.”11 The Supreme Court left it to the Court of Appeals on remand “to dispose of any other preserved challenge to the NAAQS.”12 On remand, the D.C. Circuit may consider unresolved issues and challenges to the standards that it did not address in its earlier decision because it had remanded the case to EPA to address the constitutional defects. The court may require further briefing, oral arguments, or both, or may simply decide any unresolved issues and remand to EPA for its development of a reasonable interpretation of the statute. It is likely the industry groups will continue the challenge to the NAAQS revisions on remand to the Court of Appeals and to EPA. The D.C. Circuit may find the NAAQS regulations deficient for other reasons, but even if upheld, EPA faces the difficult task of developing an implementation plan that reconciles the two Clean Air Act subparts at issue in this decision. In addition, House Energy & Air Quality Subcommittee Chairman Joe Barton (R-TX) has announced that his committee may reopen the Clean Air Act, possibly to require that EPA consider costs when setting NAAQS.13 Whatever happens, further delay of implementation of the NAAQS revisions appears inevitable. By Robert J. Martineau, Jr., and Michael K. Stagg, attorneys at Waller Lansden Dortch & Davis, PLLC, in Nashville. Both attorneys practice environmental law, chiefly in the area of air law.14 Footnotes: 1. 531 U.S. ____, No. 99-1257, 2001 U.S. LEXIS 1952 (Feb. 27, 2001), aff’g in part, rev’g in part, and remanding 175 F.3d 1027 (D.C. Cir. 1999), and American Trucking Ass’ns, Inc. v. Whitman, 195 F.3d 4 (D.C. Cir. 1999) (Case No. 99-1426). 2. American Trucking Ass’ns, Inc. v. United States Envtl. Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999). 3. NAAQS for Particulate Matter, 62 Fed. Reg. 38,652 (codified at 40 C.F.R. § 50.7 (2000); NAAQS for Ozone, id. at 38,856 (codified at 40 C.F.R. §§ 50.9, 50.10 (2000). 4. 2001 U.S. LEXIS at *22-*23. 5. Id. at *31. The Supreme Court’s precedent in nondelegation cases clearly favors Congress. The Court has overturned only two statutes for lacking the requisite “intelligible principle” to guide executive agencies in carrying out Congress’s directives. Id. at *27-*28. 6. Id. at *35. 7. Id. 8. CAA §§ 171-179B (42 U.S.C. §§ 7501-7509a) (Subpart 1 of Part D, Plan Requirements for Nonattainment Areas). 9. Id. §§ 181-185B (42 U.S.C. §§ 7511-7511f) (Supart 2 of Part D). 10. 2001 U.S. LEXIS at *46. 11. Id. at *48. 12. Id. at *31. 13. GOP Lawmaker Promises Air Act Rewrite to “Trump” Supreme Court Ruling, Inside EPA, Mar. 2, 2001. 14. Certification as an environmental law specialist is not currently available in Tennessee. Return to top |
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