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February 2013

January 2013

Army Corps Proposes New Controls To Protect Great Lakes From Evasive Aquatic Species

Grayson_Lynn_COLORBy E. Lynn Grayson


The U.S. Army Corps of Engineers (USACE) recently released an updated list of controls it has identified for preventing the transfer of aquatic nuisance species (ANS) between the Great Lakes and the Mississippi River Basin.

In the Aquatic Nuisance Species of Concern White Paper, the USACE, in collaboration with our stakeholders, identified ANS of Concern and their corresponding organism types. These ANS of Concern and organism types were the initial focus of GLMRIS for the Chicago Area Waterway (CAWS). In the Inventory of Available Controls for Aquatic Nuisance Species of Concern – Chicago Area Waterway System (ANS Control Paper), USACE identified over 90 options and technologies available to prevent the transfer of these ANS of Concern-CAWS. In December 2010, USACE posted the original draft of this document for public comment. The comments on the ANS Control Paper are available for viewing.

As a part of the ongoing analysis, USACE, in collaboration with federal, state and local governmental agencies, refined the organism types warranting further consideration by GLMRIS to include fish, algae, crustaceans, and plants. Using the information provided in the ANS Control Paper, USACE identified which of the 90+ ANS Controls may be effective at preventing transfer through an aquatic pathway for these organism types in all life stages.

Through a screening and review process, USACE and governmental agencies and organizations refined the ANS Controls for fish, algae, crustaceans and plants. "Industrial biocides" that were not used commonly for conventional municipal drinking water or wastewater treatment were removed from further consideration. "Freezing," "Desiccation," "Hot Water Thermal Barrier" in the "Lethal Water Temperature" fact sheet and the ANS Controls identified in the "Benthic Barrier" fact sheet were also removed because all were deemed to be impracticable for continued effective application. USACE removed Rotenone Oral Delivery Platforms from further consideration because fish can smell the rotenone and therefore, the smell reduces the effectiveness. Researchers are now focusing on Antimycin A Oral Delivery Platforms. The Piscicides fact sheet has been updated. The remaining ANS Controls that may be effective at preventing the transfer through an aquatic pathway of algae, crustaceans, fish and plants in all life stages are presented below.

USACE is requesting comments on this information through February 21, 2013. USACE is seeking:

  1. Information on ANS Controls that may be effective at preventing the transfer through the CAWS of fish, algae, crustaceans and plants in all life stages but are missing from the lists, or
  2. Comments regarding specific ANS Controls identified.

The recently released list of available controls is available at




D.C. Circuit Court Denies Rehearing En Banc In Cross-State Air Pollution Case

Torrence_Allison_COLORBy Allison A. Torrence


On January 24, 2013, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") denied a request for rehearing en banc of the decision to vacate the Cross-State Air Pollution Rule (the "Transport Rule"), in EME Homer City Generation, LP v. Environmental Protection Agency, et. al, Case No. 11-1302.

As previously discussed in this blog, the United States Environmental Protection Agency ("EPA") promulgated the Transport Rule to address air pollution (specifically sulfur dioxide ("SO2") and nitrogen oxide ("NOx")) that crosses state lines. EPA identified 28 States that had air pollution sources which negatively impacted air pollution levels in downwind States. EPA targeted coal and gas-fired power plants as the primary sources of air pollution which was traveling to downwind states and set standards for emission reductions at these power plants. In addition, EPA issued Federal Implementation Plans ("FIPs"), which specified how the emission reductions would be implemented.

In striking down the Transport Rule, the D.C. Circuit held that EPA exceeded its authority by (1) mandating specific air pollution reductions in upwind States that may require the upwind States to reduce emissions by more than their own contribution to a downwind State's air pollution problem and (2) not giving States the initial opportunity to design State Implementation Plans ("SIPs") as a means to achieve the standards set by EPA. In its petition for rehearing en banc, EPA claimed that the case dealt with issues of "exceptional importance" due to the enormous public health and regulatory significance of the Transport Rule. EPA argued that the three-judge panel that decided to vacate the Transport Rule acted inconsistent with D.C. Circuit precedent and in violation of the Clean Air Act.

With the D.C. Circuit's denial of EPA's petition for rehearing en banc, EPA will continue to administer its previous cross-state air pollution rule, the Clean Air Interstate Rule ("CAIR"). Although the D.C. Circuit has previously held that CAIR was also an improper rule, it did not vacate CAIR. Thus CAIR will remain in place while EPA considers whether to pursue further appeal to the United States Supreme Court or to begin working on new regulations to address cross-state air pollution.

New MOU Between EPA And Kentucky

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA Region 4 and the Commonwealth of Kentucky Department of Environmental Protection (KYDEP) have entered into a Memorandum of Understanding (MOU) to support and strengthen efforts to achieve cleanups in Kentucky. The MOU is intended to help property owners, developers, consultants, public officials and the general public understand the roles and responsibilities of the EPA and the KYDEP. This includes an improved understanding of the potential utilization of the KYDEP Voluntary Environmental Remediation Program (VERP) to access and address contamination.

Kentucky is the 25th state nationally, and the second within Region 4, to have a voluntary cleanup program agreement with the EPA.

With this MOA, Kentucky and Region 4 want to ensure that the cleanup goals of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are met following timely investigation of brownfield sites. EPA will not take CERCLA Section 106 enforcement actions against parties that address pollution at brownfield sites in compliance with the KYDEP VERP.

MOUs of this nature ensure some consistency in understanding how EPA will interact in cleanup matters led by state environmental authorities and provide greater certainty as to the anticipated roles and responsibilities of federal and state officials.

Post-Sackett Challenge to U.S. EPA RCRA Order

Siros_Steven_COLORBy Steven M. Siros


The first of perhaps many post-Sackett challenges to RCRA orders was filed in the Central District of California in December.  On December 18, 2012, a chemical company (Soco West, Inc.) challenged U.S. EPA's issuance of a RCRA Section 7003 unilateral compliance order.  In its complaint, the chemical company argues that the unilateral order is a final agency action that is subject to review under the Administrative Procedures Act ("APA").  The company seeks to challenge the order on the basis that U.S. EPA's actions in issuing the order were arbitrary and capricious. 

Prior to the Supreme Court's decision in Sackett v. EPA, pre-enforcement challenges to unilateral orders were unsuccessful because courts determined that such orders did not constitute final agency action.  In Sackett, however, the Supreme Court found that compliance orders issued under the Clean Water Act ("CWA") constituted final agency action that was reviewable under the APA.  Like the CWA, RCRA does not contain an express prohibition on pre-enforcement review. 

Please click here to view a copy of the complaint filed by Soco West, Inc.  We will continue to provide updates on this case as it progresses.

New EPA Guidance On Institutional Controls

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA has released guidance on the use of institutional controls at CERCLA, RCRA and UST sites. The guidance titled Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites is the second in a series of guidance developed by the Agency. The first document was issued in September 2000 titled Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups.

The purpose of this new guidance is to provide managers of contaminated sites, site attorneys, and other interested parties with information and recommendations that should be useful for planning, implementing, maintaining, and enforcing institutional controls (ICs) for CERCLA, or Superfund; Brownfields; federal facility; UST; and RCRA site cleanups. It highlights some of the common issues that may be encountered and provides an overview of EPA's policy regarding the roles and responsibilities of the parties involved in the various life-cycle stages of ICs while recognizing that there are some differences among the cleanup programs.

EPA defines institutional controls as "non-engineered instruments, such as administrative and legal controls, that help to minimize the potential for exposure to contamination" and help "protect the integrity of a response action." The controls are typically designed to work by limiting land and resource use or by providing information that helps modify or guide human behavior at a site.

Also in December, the agency issued a guidance document for EPA regional offices to assist them in developing institutional control implementation and assurance plans. The document is titled Institutional Controls: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites.

This guidance provides EPA regions with a template for developing an institutional control implementation and assurance plan (ICIAP) at contaminated sites where the response action includes an institutional controls component.

An ICIAP is a document designed to systematically establish and document activities associated with implementing and ensuring the long-term stewardship of institutional controls and to specify the persons and entities responsible for conducting the activities.

The guidance for regions recommends that the ICIAP be developed before, or at the same time as, the design of the engineered response—such as brownfields remedial work plans—and finalized with the design completion.

The guidance on institutional controls for managers of contaminated sites and other interested parties is available at

The guide on institutional controls for EPA regions is available at

Environmental Group Files Protective Lawsuit Challenging Logging Road Rule

Siros_Steven_COLORBy Steven M. Siros


On January 4, 2013, the Northwest Environmental Defense Center ("NEDC") filed a Petition for Review of U.S. EPA's recently promulgated final rule which clarified that stormwater discharges from logging roads did not require a NPDES permit under the Clean Water Act. As discussed in a prior post, in a case now pending before the United States Supreme Court, NEDC challenged U.S. EPA's prior determination that stormwater discharges from logging roads were properly characterized as non-point source discharges and/or were properly excluded from the industrial activity category that would otherwise require a NPDES permit. On the Friday before a Monday oral argument, U. S. EPA issued a final rule which specifically clarified U.S. EPA's intent that these logging roads were not subject to the NPDES permitting framework.

During oral argument, several justices seemed inclined to find that U.S. EPA's newly issued rule mooted the pending case in that it provided the relief that the petitioners were seeking before the Supreme Court. Although both the petitioners and respondents urged the high court to decide the matter, NEDC's recently filed Petition for Review was intended to preserve its ability to challenge U.S. EPA's final rule in the event that the Supreme Court declines to decide the issue. To see a copy of NEDC's Petition for Review, please click here.

ORM-D Authorization Extended Through 2020

Siros_Steven_COLORBy Steven M. Siros


On January 7, 2013, the Pipeline and Hazardous Materials Safety Administration ("PHMSA") issued a final rule extending authorization of the ORM-D classification for domestic shipments through December 31, 2020. Under the ORM-D system, shipments of limited quantities of hazardous materials can be shipped via domestic highway, rail, and vessel without being subject to the packaging and labeling requirements that would ordinarily apply to such shipments. Although the authorization for use of the ORM-D mark on material transported by aircraft expired on January 1, 2013, the authorization for shipments by highway, rail and vessels was extended through December 31, 2020.

The ORM-D authorization for all modes of transportation had originally been scheduled to expire on January 1, 2014 in order to conform the federal regulations with the U.N. Model Regulations for the domestic and international transport of limited quantities of hazardous substances. However, in response to numerous comments from industry groups, PHMSA decided to extend the deadline to provide domestic shippers more time to adjust to the international standards. To see a copy of the final rule, please click here.

U.S. EPA Issues Revised Guidance On The Use Of Institutional Controls At Contaminated Sites

Siros_Steven_COLORBy Steven M. Siros


U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") recently issued revised guidance relating to the use of institutional controls at Superfunds sites and other contaminated properties. The first guidance document, titled "Institutional Controls:  A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites", is intended to provide site managers, attorneys, and other interested persons with information and recommendations concerning the use of institutional controls at CERCLA, Brownfields, underground storage tanks and RCRA site cleanups.

The guidance provides an overview on the various types and generally discusses the role of institutional controls in site cleanups. The guidance discusses the importance of evaluating institutional controls early in the site cleanup process as well as evaluating the full life-cycle of the proposed institutional control.  The guidance stresses the importance of meeting with community members and local government representatives throughout the institutional control's life cycle.  Finally, the guidance also addresses the need to carefully consider state law requirements when implementing institutional controls, especially in situations where there may be competing recorded interests such as mortgages, tax liens, or utility interests. 

U.S. EPA's OSWER also issued revised guidance on the development of Institutional Control Implementation and Assurance Plans ("ICIAPs"). This second guidance, titled "Institutional Controls:   A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites", provides a template to the Regions for developing ICIAPs at sites where  institutional controls are to be utilized. Although not required, an ICIAP provides a useful framework for ensuring that all the requirements for implementation of an institutional control are followed and compiled into a single document.

UN Declares 2013 International Year Of Water Cooperation

Grayson_Lynn_COLORBy E. Lynn Grayson


Water stress issues in the United States and abroad are growing in numbers and significance. Recognizing the priority that should be accorded the goal of addressing water needs worldwide, the United Nations (UN) has declared that 2013 will be the "International Year of Water Cooperation." Adopted in 2010 by the UN General Assembly, it is hoped that this special resolution will serve as a platform to increase people's awareness of water-related problems and promote action on ways to resolve them. Increased cooperation is needed to confront water management challenges worldwide in light of growing demands for water access, allocation and related services. Special events throughout 2013 will focus on education, culture, gender, sciences, conflict prevention and resolution as well as the importance of ethics in negotiating water rights. World Water Day will be held on March 22nd and will draw even more attention to the critical importance of these concerns. More information about the International Year of Water Cooperation and the work of UN-Water is available at