EPA Launches eDisclosure Portal to Modernize Self-Reporting

Under EPA’s long-standing Audit Policy and Small Business Compliance Policy, companies that discover, disclose, and correct environmental violations may be entitled to penalty mitigation and other benefits. On December 9, 2015, EPA published a Federal Register Notice announcing the launch of EPA’s new eDisclosure system which will modernize voluntary self-disclosures.

The eDisclosure system consists of a web-based portal for reporting both Emergency Planning and Community Right-to-Know (EPCRA) and non-EPCRA violations under EPA’s Audit Policy. The eDisclosure portal does not change any of the Audit Policy criteria, but it does dramatically change the manner in which the Audit Policy is implemented. Continue Reading

Zoning Commission Expertise Due Limited Deference in Eyes of Court

The Connecticut Superior Court recently ruled that the Town of Rocky Hill Planning & Zoning Commission (Commission) exceeded its authority by approving a fill permit application to construct a road at the site of the former Rocky Hill landfill located partially within the Town’s Floodplain Overlay District.  The decision – which culminates a five-year zoning appeal brought by Great Meadows Conservation Trust, Inc. (GMCT) challenging the type of fill material proposed to construct the road – is important for its analysis of when an administrative agency’s interpretation of its own regulation is and is not entitled to deference.

In 2006, Meadow Properties, LLC purchased the approximately 43 acre former Rocky Hill landfill site, which is bordered on the west and the north by Goff Brook – a watercourse that discharges into the Connecticut River.  The site abuts property owned by GMCT, whose mission it is, in part, to preserve the floodplain and its agricultural, scenic, archeological and wetland resources.

Prior to 1979, the site had been operated as a permitted municipal solid waste landfill until the expiration of a solid waste operating permit for the site.  After the permit expired, the former site owner capped the landfill with soil – a process in which certain material is placed on the landfill to stabilize the solid waste therein, to prevent erosion, and to maintain the integrity of the cap.  But in 2008, the Connecticut Department and Environmental Protection (DEEP) inspectors observed areas of landfill leachate outbreaks and other areas where the landfill cap had eroded.  DEEP staff believed that these issues could cause waste to leach into and pollute State waters.

In 2010, Meadow Properties entered into a Consent Order with DEEP specifying the steps to be taken to repair the landfill cap and to complete post-closure monitoring and maintenance.  Meadow Properties also sought to conduct commercial operations to deposit additional solid waste on site.  Later in 2010, the site operator selected by Meadow Properties submitted to the Commission a fill permit application to construct a road using 1,731 cubic yards of recycled asphalt millings.  The GMCT and other residents urged the Commission to deny the application on the ground that asphalt millings were not permissible fill material under the Town’s zoning regulations.  The Commission rejected this argument and approved the application.

But the Superior Court agreed with GMCT that the Commission had exceeded its authority in approving the application for road construction.  The Court found that the zoning regulations did not allow asphalt millings as fill material, since “filling” was defined as “[t]he depositing of clean fill such as soil, sand, gravel, rock or clay.”  The zoning regulations in effect at the time added that “[t]he fill material shall consist of earth fill, woody vegetation, and masonry only.  No trash, garbage, building materials, or junk of any nature shall be permitted.”  According to the Court, asphalt millings did not meet these regulatory requirements.

Perhaps the most important aspect of the Court’s decision is its analysis of when a zoning agency’s decision is – and, important to this case, is not – entitled to deference.  The Commission attempted to justify its approval of the application on the ground that asphalt millings were used elsewhere in Town to repair roads.  However, the Court found this argument unpersuasive and noted that for a zoning agency’s decision to be afforded deference there must be a record of the agency itself interpreting and applying the subject zoning regulation in matters before the agency over an extended period of time.  There was no evidence in the record before the Court that the Commission itself had ever interpreted the zoning regulations governing fill material – only that the Town had used asphalt millings to repair some roads.  Because the Commission’s decision was not entitled to any deference, the Court conducted what is known as plenary review (in which the agency decision is afforded no deference) to conclude that the Commission violated its own regulations.

The Court’s decision sends a strong message to administrative agencies that they cannot justify their own actions using other agencies’ regulatory interpretations or actions that had not been before the deciding agency for approval.

*Brian Smith is a Robinson & Cole partner and chairs the LandLaw section in the firm.  Evan Seeman is an associate and member of the Land Use Practice Group of the firm. Brian and Evan  represented GMCT in this appeal – Great Meadows Conservation Trust, Inc. v. Town of Rocky Hill Planning & Zoning Commission, Docket No. 10-6007251-S (Nov. 16, 2015). 

Electronic Reporting to be the NPDES Rule

After a lengthy public notice and comment period, the final National Pollutant Discharge Elimination System (“NPDES”) Electronic Reporting Rule was published in the Federal Register on October 22, 2015, and will become effective 60 days after publication on December 21, 2015.

The Rule requires NPDES-regulated entities to submit their compliance monitoring reports electronically instead of through paper reports.  While the Rule changes the method by which information is provided, it does not increase the amount of information required under existing regulations.

The final Rule requires that regulated entities electronically submit:

  • Discharge Monitoring Reports (“DMRs”)
  • Notices of Intent to discharge in compliance with a general permit
  • Program Reports

The Rule provides some flexibility regarding the method of electronic reporting, allowing states and other authorized NPDES program administrators to collect the data using their own electronic systems, EPA’s data systems, or tools developed by third parties that meet the requirements of the Rule.  Program administrators are responsible for transmitting the federally-required data to EPA.

The Rule will be implemented in two phases over a five year period.  During Phase 1, most facilities subject to effluent monitoring reporting requirements will be required to start submitting data electronically one year following the effective date of the final Rule.  Also during Phase 1, authorized state NPDES programs are required to submit an implementation plan for meeting the Phase 2 data submission requirements to EPA.

During Phase 2, EPA and authorized state NPDES programs will have five years to begin collecting, managing and sharing general permit records, Sewage Sludge/Biosolids Annual Program Reports, and all other remaining NPDES program reports.

The EPA will make facility-specific information, like inspection and enforcement history, pollutant monitoring results, and other data required by NPDES permits accessible to the public through EPA’s website.  This rulemaking is part of EPA’s Next Generation Compliance strategy to take advantage of new tools and approaches to increase compliance and reduce pollution.

The EPA estimates that the Rule will cumulatively save about $22.6 million annually for authorized state NPDES programs once fully implemented.

For more information from EPA, see http://www2.epa.gov/compliance/final-national-pollutant-discharge-elimination-system-npdes-electronic-reporting-rule

Who’s Responsible for this Project Design? Massachusetts Knows

We wanted to share this timely post by Elizabeth Wright on our Construction Law Zone blog because it affects Construction Manager-At-Risk projects undertaken in Massachusetts, a topic we know is of interest to our readers.

In keeping with a growing trend, in 2004, Massachusetts departed from the exclusive use of the traditional “design-bid-build” project delivery method for public projects and permitted public agencies to employ the less traditional design-build and construction manager-at-risk delivery methods on certain public projects. The increased use of such project delivery methods raises the question: who is liable for the adequacy of the design?  Continue Reading

Development Update: Maine DEP Proposes Site Development Rule Changes

The Maine Department of Environmental Protection (DEP) will hold a hearing on October 15th to receive comments on three rulemaking changes to the state’s site location of development rules (“Site Laws”).  Additional public comments may be filed before October 26, 2015 (Notice).

The Site Law permitting program calls for review of certain development projects that may have a substantial effect upon the environment.  Projects that meet the criteria triggers established by the Legislature include developments over 20 acres, large structure and subdivision projects, and oil terminal facilities.  Such projects must meet the applicable standards for stormwater management, groundwater protection, infrastructure, and protection of wildlife, fisheries and unusual natural areas.

The rules require that developers demonstrate a financial capacity to construct, operate, and maintain all aspects of the development, and not just the pollution controls aspects.  Proposed changes to these DEP regulations are intended to update financial ability and technical ability standards, reflect changes in nomenclature and DEP practices since the original rules in 1979, and provide greater clarity as to how to satisfy the requirements.  In general, developers will have to provide evidence of financial capacity prior to an application decision.  An itemization of major costs including land acquisition, erosion control, roads, sewers, structures, water supply, utilities, pollution abatement and landscaping will have to be provided for each phase of development.

Other proposed changes concern Chapter 380 of the DEP rules establishing requirements for long-term construction projects (i.e. those projects not anticipated to be substantially completed within ten years).  In part, five and ten year project review reports must be prepared evaluating compliance with DEP rules, delineating any previously unidentified protected areas and resources and demonstrating compliance with Site Law requirements.

A copy of the proposed rule revisions, and additional information on the hearing and comment process is available at the DEP web site and the Notice link above.

Connecticut Supreme Court Dials Back CT DEEP’s Authority Over Permit Applications

In a decision that could have broad implications for all companies regulated by the DEEP, the Connecticut Supreme Court recently upheld a permit applicant’s challenge to the Agency’s authority under the Connecticut Water Diversion Policy Act. The ruling in Tilcon Connecticut v. Commission of Environmental Protection, 317 Conn. 628 (July 2015), pushes back on a common DEEP stance that a single permit application authorizes the Agency to review environmental impacts on a project-wide scale, rather than only those impacts directly associated with the application. The Court also frowned on the DEEP’s policy of withholding its authorization of other permits while working through issues on unrelated applications. While the decision is specific to the Water Diversion Policy Act and permits related to the Act, the principles at play in the Court’s analysis have a much broader application and no doubt will be cited by the regulated community when the DEEP pushes the boundaries of its jurisdictional authority.

Tilcon, an excavation and earth materials processing company, applied to the DEEP for five water diversion permits, one for each of five facilities. Tilcon uses the water for quarry operations, including washing aggregate, processing stone sand, cooling equipment and suppressing dust. The Agency’s response to the applications had three components:

  1. a request that Tilcon provide information on additional excavation activities beyond those associated with the five applications;
  2. a request that Tilcon submit a mitigation plan for wetlands alterations that had previously been approved by one of the municipalities where it operated; and
  3. a statement that the DEEP had the authority to delay the processing of Tilcon’s separate NPDES permit renewal pending a resolution of the water diversion permit applications.

Tilcon challenged the Agency’s position to the Commissioner, which upheld the Agency’s statement of its authority, and then appealed to the trial court, which affirmed the Commissioner’s determination. At its final avenue for recourse, the Supreme Court, where it was supported by amicus briefs on behalf of the Connecticut Business & Industry Association, the Home Builders and Remodelers Association and the Connecticut Water Works Association, Tilcon found a more receptive audience. The Court found for Tilcon on all three primary arguments, stating:

  • The Water Diversion Act did not authorize the Agency to seek information about Tilcon’s excavation activities apart from the diversions for which the permits were sought;
  • The DEEP exceeded its authority by requesting a wetlands mitigation plan to mitigate the effects of Tilcon’s prior, approved, excavation activities; and
  • The trial court wrongly upheld the Commissioner’s conclusion that the DEEP had the authority to delay processing Tilcon’s NPDES permit application due to outstanding issues associated with the diversion permits.

It is worth noting that Tilcon first submitted the applications to the DEEP in 2003. Between the typical give and take with the Agency over the applications, the Agency’s requests for additional information, Tilcon’s petition to the Commissioner seeking a declaratory ruling on the Agency’s authority, Tilcon’s appeal to the superior court, and its ultimate appeal to the Supreme Court, over twelve years passed. While the Court’s decision establishes some clear parameters for the parties moving forward, the company still does not have approved diversion permits.

Army Corps Issues Notice for Long Island Sound Dredging Plan

On August 17, 2015, the U.S. Army Corps of Engineers, New England District, released for public review and comment the Draft Dredged Material Management Plan (DMMP) and Draft Programmatic Environmental Impact Statement (PEIS) for Long Island Sound (LIS).

Ten years in the making, the 582-page DMMP and 738-page PEIS (plus supporting technical documents) examine numerous topics related to dredging and material management and disposal in LIS, including:

  • the need for dredging;
  • past dredging history and dredged material placement;
  • current beneficial use practices;
  • alternatives for future dredged material placement and beneficial use for each federal navigation project;
  • the existing environment; and
  • an assessment of the impacts of available or potentially developable dredged material management alternatives.

The DMMP/PEIS was spurred in part by efforts over the last 30 years by advocates for alternatives to in-water disposal, especially in New York waters.  The DMMP does not recommend specific dredged material placement solutions for specific federal navigation project activities.  Rather, the DMMP will act as a framework to guide future investigations and inform decision-making for federal actions with respect to dredging and dredged material placement.

As part of the notice, the Corps is extending the public comment period that was originally listed in the July 23, 2015, public notice so that it now runs through October 5, 2015. The Corps will also hold four public hearings to provide an overview of the reports and receive public comment:

  • Monday, Aug. 24, 2015 in the Village Center at Port Jefferson, NY;
  • Tuesday, Aug. 25, 2015 at the Marriott Long Island in Uniondale, NY;
  • Wednesday, Aug. 26, 2015 at the University of Connecticut-Stamford in Stamford; and
  • Thursday, Aug. 27, 2015 at the Holiday Inn-New London in New London.

The hearings will start at 6:00 p.m., but if you want to speak on the record, you have to register starting at 5:30 p.m.

 

Rhode Island Moves to Create Consistency with Statewide Inland Wetlands Standards

Governor Raimondo recently signed legislation that will lead to the creation of statewide development setback standards for freshwater wetlands. The new legislation results from the work of a taskforce created two years ago to marshal information on wetland and water resource management issues from stakeholders ranging from environmental groups to real estate developers.

Legislators see their efforts as reflecting widely supported improvements to the current regulatory system. In a press release, Representative Arthur Handy, the sponsor of the House version of the legislation, noted:

Environmentalists and businesses have been calling for uniform standards for years and I am happy to report that such standards now exist.

In a similar theme of broadly perceived value, the Senate sponsor, Senator Erin Lynch, commented that:

These standards are good for residents, they are good for businesses and they are good for the environment.

The legislation is intended to address a lack of uniform wetlands standards at the municipal level that were found to create a duplication of regulatory reviews, and burdened businesses and property owners who require a predictable regulatory environment. The creation of statewide standards applicable to freshwater wetlands, buffers, and floodplains was declared to be in the public interest, important to support economic vitality, and necessary to ensure consistency in the protection of wetlands.

The new law defines “jurisdictional areas” to include freshwater wetlands, buffers, floodplains and areas subject to storm flowage and flooding, and areas contiguous to these areas. Also included in the definition are areas within 200 feet of the edge of a river, stream or drinking water supply reservoir, and areas within 100 feet of “all other freshwater wetlands.”

The Department of Environmental Management (DEM) and the Coastal Resources Management Council (CRMC) have twelve months to create freshwater wetland buffer and setback regulations. The new regulations will include a procedure for municipalities to petition to increase the jurisdictional buffer areas noted above. The regulations must also specially address setback and buffer criteria for agricultural activities and plant-based green infrastructure, and detailed revisions concerning the oversight of “normal farming” activities are also included.

Property owners, prospective developers and environmental groups are sure to be interested in participating in the process undertaken by the DEM and CRMC to draft the required regulations. While the intended uniformity of standards are expected to be welcomed by owners and developers, it may be important to pay continued attention to municipal efforts to secure approval of more protective local buffer limits once the new regulations are created.

Simplifying and Supplementing EPA Settlements with SEPs

What if you could settle a difficult and contentious enforcement action with the Environmental Protection Agency (EPA) by installing a green roof on a children’s hospital? The EPA not only allows for such Supplemental Environmental Projects (SEP) as a component of a negotiated resolution, the agency encourages their use. A number of states have parallel programs. Generally, a SEP is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action. While the EPA’s policy on SEPs has been in place since 1998, they continue to be underutilized. Most settlements focus exclusively on monetary penalties and/or injunctive relief, but SEPs can offer win-win outcomes for defendants, regulators, impacted communities, and the environment. For example, purchasing breathing apparatus for emergency responders or conducting energy audits for schools or municipal buildings.

Defendants in either an administrative or judicial enforcement action can perform a SEP to offset a portion of the monetary penalty. In addition to conferring real and immediate benefits to the environment, incorporating a SEP into settlement discussions often promotes more cooperative relationships between defendants and agency enforcement personnel.

While SEPs have been long been a part of the EPA’s toolbox, agency policies on how and when to include them has been disjointed and scattered through a variety of guidance documents. Recently, however, EPA issued new guidance which consolidates and organizes the agency’s approach to SEPs. At a recent ABA Environmental Litigation conference, EPA Assistant Administrator Cynthia Giles encouraged the regulated community to review the new guidance and consider SEPs when resolving enforcement actions.

Everyone wins – the agency can promote select causes; the defendant can potentially reduce or recharacterize the penalty and possibly direct funds to a cause it supports; and worthy projects gain direct and immediate financial support. It may take some additional time and effort to reach agreement on the recipient, the project, and how it will be implemented, but the benefits can be substantial.

Qualifications

  • To qualify as a SEP, a project must be environmentally beneficial and have some nexus to the violation. What constitutes a sufficient nexus is not always well defined, so depending on how wedded the defendant or the agency is to a specific project, this requirement can be the subject of lengthy negotiation.
  • The obligation to perform must also be legally enforceable, the EPA must have an opportunity to review and approve the project, and the defendant must not otherwise be obligated to perform the function.
  • In evaluating proposals, the EPA will consider the benefit to the public, environmental justice benefits, community input, and the use of innovative technologies to improve the environment or reduce pollution. The recent EPA guidance identifies a number of priority causes for the agency, including children’s health, environmental justice, pollution prevention, innovative technology, and climate change. While this list is not exclusive, a SEP that falls into one of these categories is more likely to win agency approval.

There are limits on how much of the penalty can be addressed through the SEP, but the EPA states that,

all else being equal, the final settlement penalty will be lower for a violator who agrees to perform an acceptable SEP, compared to the violator who does not.

For companies trying to resolve enforcement actions, SEPs provide an opportunity to do well by doing good.

Key Factors to Maximizing Project Success

There are unique circumstances on each project that call for a specific approach to optimize success. While those in the industry understand the significance that early decisions regarding project delivery have on the overall success of a project, too few owners and developers take the time to truly understand the importance of putting together the right team and the right method of delivery.

In my latest post on the Construction Group’s blog, Construction Law ZoneI took a look at a study done on capital projects over a six year period from 2008 to 2014 as to what factors lead to maximizing project success. My overall thoughts on the study are reflected in my blog entry, “Maximizing Project Success—A New Guide for Owners.”

I am interested in hearing from developers on what factors they believe are integral to overall project success. Does the Maximizing Project Success study hit all the right points?

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