SCENVIRONMENTALLAWYER.COM

Reading EPA's Tea Leaves: Civil and Criminal Enforcement priorities

Roy Shelley — Sun, 07 Feb 2010 16:57:00 GMT

Two recent news items regarding the EPA should be of interest to anyone practicing environmental litigation. First, EPA Administrator Lisa Jackson issued her "state of the EPA" report on her first year in office and her priorities:
(http://blog.epa.gov/administrator/2010/01/12/seven-priorities-for-epas-future/).

Second, the Obama Administration's budget gives an indication of the directions they would like EPA to take:
(http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/0efb5bc261f61eb7852576bd00638467!OpenDocument)

Taken together, they signal a clear intent to increase the EPA's involvement in proactive protection (e.g., chemical testing, additional materials handling rules) and in clean-up enforcement (e.g., CERCLA. or "Superfund" sites).

Upcoming Columbia-Area Environmental Events - February 2010

Roy Shelley — Fri, 05 Feb 2010 20:56:00 GMT

Feb 11th: Putting a Face on Global Sustainability: The Impacts of Copenhagen

On Thursday February 11 at 6:30PM in the Green Quad Learning Center, the Green Quad will host a discussion by USC Law Professor Cinnamon Carlarne on the U.N. Climate Change Conference held last year in Copenhagen. The discussion with be a evaluation of the progress and speed of climate change, as well as what is left to be done with emphasis on experiences from other countries, their ways of living and visions for the future. For additional information, contact Jason Craig, GreenQuadLearningCenter for Sustainable Futures 803-777-1994 craigjd@mailbox.sc.edu

For more information, go to http://www.sustainablemidlands.org/

Feb 15th & Feb 22nd Mayoral Candidate Forums on Environmental Issues:

1) The John Bachman Group of the Sierra Club will host a mayoral forum on environmental issues on February 15 at 7:00PM in the USC Green Quad Learning Center. http://www.greenquadcommunity.org/

2) The "Mayoral Forum on sustainability issues and the environmental challenges facing Columbia" will be held on Monday February 22 at 6:00PM in the Olympia Room of Historic 701 Whaley. Come early to meet and mingle with the candidates at 5:30PM.

USC Belser Arboretum Open House – Sunday Feb 21st

The site is one of Columbia’s most beautiful and unusual properties. Its highly diverse topography is related to its geological history and structure. The large sand dune at the Bloomwood entry gate marks the most westward incursion of the Atlantic Ocean. The dune is primarily sand and rounded, fist-sized stones. Examples of these wave-polished stones can be seen in the retaining wall adjacent to the Bloomwood gate. The higher ridges are quite dry and support upland forest in contrast to the valley, which is characterized by bottomland forest. The cove area is a former streambed, which emptied into the Atlantic Ocean. In earlier days, an earthen dam held rain water in a pond where bald cypress thrived, and today a small cypress swamp is still present. A former stream, now a storm water outlet, tumbles down over 5 cascades into a handsome pool surrounded by ferns and wildflowers. Several underground springs are present in the lowland area by the streambed.

When Sun Feb 21 1pm Where 4080 Bloomwood Rd. Columbia SC 29205 (map)

http://www.greenquadcommunity.org/

2010 Green Associate & LEED® AP EXAM Prep and Study Course

Roy Shelley — Wed, 03 Feb 2010 19:54:00 GMT

Offered by the SC Chapter of the US Green Building Council:

What will be covered?
• Introduction to USGBC
• Overview of Green Associate and LEED AP BD+C Exams
• LEED for New Construction (LEED-BD+C) point system
• Sustainable Sites
• Water Use Reduction; Water Efficient Landscape Design
• Optimized Energy and Atmosphere
• Green Materials and Resources
• Enhanced Indoor Environments
• Innovation and Design
• Additional Exam Topics

Who should attend?
Students and building industry leaders interested in becoming Green Associates or LEED Accredited Professionals, e.g.,
• Architects• Engineers• Developers• Planners• Contractors

Classes: Held at USC's Green Quad Learning Center, 1216 Wheat St., Building “D”
5:30 – 6:45 P.M.
Class 1: Thursday, February 18
Class 2: Thursday, February 25
Class 3: Thursday, March 4
Class 4: Thursday, March 18 (LEED AP only)
Class 5: Thursday, March 25 (LEED AP only)
Class 6: Thursday, April 1 (LEED AP only)
Class 7: Thursday, April 8 (LEED AP only)
Class 8: Thursday April 15 (LEED AP only)
Class 9: Thursday April 22 (LEED AP only)
Class 10: Thursday April 29 (LEED AP only)

Fees:
Green Associate: Full-time USC Students $ 50; USGBC-SC Members $100; Non-USGBC-SC Members $150
LEED AP BD+C: USGBC-SC Members $250; Non-USGBC Members $300

All fees are due in full on February 18 payable by cash, check or credit card. Please RSVP by Wednesday, Feb. 17th to
state@watsontatesavory.com
Visit www.usgbcsc.org for more information.

What do the fees include?
• 3 GA Associate Classes, 10 LEED AP Classes
• Dinner
• Access to study guides and instructor presentations.

AIA Continuing Education and Engineering PDHs Available

Tax Credits for Brownfields (contaminated property) Redevelopment

Roy Shelley — Tue, 02 Feb 2010 21:19:00 GMT

South Carolina has numerous former industrial sites which would require remediation prior to development for future use ("Brownfields"). The type and amount of cleanup will vary, of course, based upon the contaiments of concern and the proposed use (residential usually requiring greater cleanup). Obviously, incentives for such redevelopment benefit everyone, and both federal and state authorities have programs designed to encourage remediation and redevelopment. (click here for SC's program thru DHEC.)

These incentives also include tax credits which allow all or a significant portion of environmental cleanup costs to be deducted in the year incurred. (Usually, costs which create permanent improvement must be capitalized and deducted over a # of years). Although the federal tax benefit expired December 31, 2009, legislation is pending to extend the Brownfields Tax Incentive again. Note also that legislation in 2006 amended the tax incentive to include petroleum cleanup. (Generally, petroleum is excluded from CERCLA regulation.) (See EPA factsheet here. See additional info here.)

In addition, SC offers a significant tax credit for cleanup costs. (See form with citations here.)

Meeting set to discuss the 2010 Legislative Priorities of the SC Conservation Common Agenda

Roy Shelley — Tue, 02 Feb 2010 19:37:00 GMT

E-mail from the SC Chapter of the Green Building Council:

Learn about the 2010 legislative priorities of the South Carolina Conservation Common Agenda, from the green advocates and lobbyists who work with the General Assembly. Topics include developing a comprehensive state energy policy that focuses on efficiency and alternative energy sources, water withdrawal permitting, and funding the South Carolina Conservation Bank.

DETAILS WHEN: Friday, February 12th, 11:30am to 1:15pm
WHERE: Midlands Technical College Northeast Campus (MAP)
PROGRAM COST: $10/Person; Lunch will be provided

RSVP by Monday, February 8th to Michael Criss (mcriss@sc.rr.com)
www.usgbcsc.org

S.C. Supreme Court Validates DHEC's authority over freshwater wetlands

Roy Shelley — Tue, 02 Feb 2010 19:26:00 GMT

In a decision affecting the possible fate of hundreds of thousands of SC's interior wetlands, the SC Supreme Court recently ruled that DHEC has regulatory authority over wetlands in certain coastal counties regardless of whether they are connected to coastal body of water. (Spectre v. SCDHEC, 2/1/10) A developer in Horry County had challenged DHEC's denial of a permit to fill in 30+ acres of freshwater wetlands. The Court held that DHEC acted within its authority under the Coastal Zone Management Act (CZMA) in denying the permit. The CMZA defines the “coastal zone” as Beaufort, Berkeley, Charleston, Colleton, Dorchester, Horry, Jasper, and Georgetown counties. ( See S.C. Code Ann. § 48-39-10 et seq..)

"Carolina Bays" are an example of these types of isolated wetlands, and are considered by environmentalists and others as essential to ecology and stormwater management. However, after recent US Supreme Court decisions which severely limited Federal authority over wetlands (see Rapanos, 2006, and Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 2001) state law provided the only regulatory limitation over the development or drainage of wetlands not connected to navigable or coastal waters. Landowners and developers have been challenging DHEC's authority over these areas for almost a decade.

S.C. Environmental Awareness Award

Roy Shelley — Wed, 25 Nov 2009 14:15:00 GMT

S.C. DHEC is accepting nominations through December 18, 2009 for the S.C. Environmental Awareness Award, which is designed "to recognize South Carolinians for outstanding contributions made toward the protection, conservation and improvement of South Carolina’s natural resources." See http://www.scdhec.gov/environment/admin/envawareness/envawards.htm for more information. (Please refrain from nominating a cigarette company.)

Green Money Flowing into S.C. (from the Feds, at least)

Roy Shelley — Wed, 25 Nov 2009 14:08:00 GMT

Recent announcements of governmental grants related to environmental projects include the largest grant in Clemson University history - a $45 Million grant from the US Department of Energy to test "next-generation" wind turbines and drive trains at the former Charleston Naval Complex. Clemson has secured an additional $53 Million in matching funds to construct a large-scale testing facility. Construction is scheduled to begin in early 2010 and expected to be operational by 2012. See http://www.midlandsbiz.com/news/headlines/589/ for more information and links to relevant websites.

On a much smaller scale, but more likely to be relevant to local organizations, the EPA announced a grant of up to $160,000 to the South Carolina Department of Health and Environmental Control (DHEC) for "a pilot project program utilizing collaborative problem-solving … to address the environmental and social justice concerns within the selected communities. DHEC will offer technical assistance to communities as they conduct environmental assessments and address environmental issues identified in the community. Each pilot project will meet specific criteria. There will be opportunities to participate in leadership development training designed to create organizational capacity, assist in developing strategies, and build partnerships."

Information about the EPA programs for these grants can be found at http://www.epa.gov/compliance/environmentaljustice/grants/ej-sejca-grants.html (State grants program) and http://www.epa.gov/compliance/environmentaljustice/grants/ej-smgrants.html (Small Grants program)

One obvious goal of these governmental grants is to stimulate private investment (both money and commitment) and the development of commercially-viable industries to meet our needs in an environmentally-friendly manner. (At least as far as we understand it at this point. You may recall that cigarettes were once promoted for their "health" benefits. See, e.g., http://www.frankwbaker.com/brief_history_of_tobacco_ads.htm )

Santee Cooper axes proposed Pee Dee Coal-fired Power Plant

Roy Shelley — Tue, 25 Aug 2009 14:52:00 GMT

The Santee Cooper Board of Directors, citing economic uncertainty, voted unanimously on Monday to suspend pursuing permits for a new coal-fired power plant proposed to be built in Florence County along the Great Pee Dee. (Santee Cooper homepage.) This action makes it unlikely the plant will ever be constructed.

The proposal had been under fire from numerous environmental groups (see ConservationVoters of SC) opposed to coal-fired plants, which create massive amounts of greenhouse gases (primarily carbon dioxide) and mercury. Perhaps it is just coincidental that the announcement comes on the heels of the release of a multi-year study of mercury contamination (see my last post) which found the highest concentrations of mercury in southern blackwater rivers. The proposed location of the coal-fired plant in the Pee Dee area would likely impact the vast blackwater waterways of the Great Pee Dee, Little Pee Dee, Lynches, Lumbar, and Waccamaw rivers – all of which are already subject to a DHEC fish consumption advisory due to mercury contamination. (DHEC’s fish advisory map.)

In addition, the continued use of coal exacerbates controversial practices such as mountain-top removal mining in the Appalachians (http://www.nrdc.org/energy/coal/mtr/default.asp), as well as producing coal ash waste streams (which create secondary dangers – it was a coal ash slurry pond that collapsed in Kingston, Tennessee, sending millions of tons of toxin-containing slurry into waterways, destroying dozens of homes, and creating a clean-up currently estimated at $1.2B. (See one report here.).)

Energy production has long been a source of friction between industry (power producers and power users) and environmentalists. The fact that Santee Cooper acknowledged an environmental issue only in terms of costs & federal regulation is a reflection of the different points of view on this issue. Future progress, in terms of balancing efficiency and environmental protection, will require that both sides acknowledge the costs – monetary and environmental – that necessarily accompany energy production.

Wednesday: Study Reveals Mercury Contamination in Fish Nationwide; Thursday: S.C. to receive $60Million in Recovery Act funds for Water Projects

Roy Shelley — Fri, 21 Aug 2009 17:25:00 GMT

The EPA announced on Thursday that South Carolina will receive over $60Million in Recovery Act funds for water projects, including over $40Million for the S.C.’s Clean Water State Revolving Fund, which provides low-interest loans for water quality protection projects for wastewater treatment, non-point source pollution control, and watershed and estuary management. In addition, the state will receive $405,500 for its Water Quality Management Planning (WQMP) program whose goal is to improve water quality in lakes, rivers and streams. Some of these funds can awarded to local planning organizations for activities such as monitoring water quality, developing plans to restore polluted waters, and identifying ways to protect healthy waters from becoming polluted. The EPA release says “[s]tates are also encouraged to use these funds for more innovative planning activities, such as developing plans to adapt to climate change, analyzing trends in water availability and use, and creating low-impact development programs.” (EPA news release)

Timely announcement considering another study was just released showing that virtually every watershed in the country has some level of mercury contamination. The U.S. Geological Survey (part of the US Dept of the Interior) released the results of a multi-year study on Wednesday. (See news release on study here.) Prior studies have addressed mercury contamination in ocean and lake fish, and the latest study found that 27% of fish in rivers and streams exceeded the EPA standards for consumption of two or more servings per week. (See USA Today story here.)

Mercury contamination in watersheds comes mainly from atmospheric mercury, almost all of which is a result of coal-burning in power plants. However, other more easily-identifiable sources include mining operations, landfills, trash incinerators, and chemical and concrete plants. (See EPA factsheet on mercury here.) The highest concentrations of mercury were found in the “blackwater” rivers and streams of South Carolina and other southern states. Forty-eight states currently have fish consumption advisories, and South Carolina’s map of affected waterways covers virtually the entire state (SC’s Fish Advisory Map).

Mercury exposure can harm multiple organs as well as the body’s immune system, making people more susceptible to secondary illnessness and disease. In addition, mercury exposure to unborn and young children can cause significant physical and mental development problems. (See EPA’s factsheet on health effects here.)

Although most mercury poisoning litigation relates to specifically-identifiable potential sources (mercury filings, vaccines, processed tuna), mercury contamination of waterways is more widespread and potentially a greater threat to the population at large. Clusters of mercury-related symptoms within a confined geographic area may be traceable to specific sources and could lead to litigation against industries and power plant operators.

Overview: The EPA’s role in the Enforcement of Environmental Law

Roy Shelley — Thu, 20 Aug 2009 12:32:00 GMT

The EPA’s role in enforcing environmental law falls into three broad (and overlapping) categories: Civil, Criminal, and Cleanup. Although some on the receiving end of an enforcement action may believe the government has unlimited resources (and the ever-increasing national debt does nothing to dissuade this belief), even the EPA has to prioritize its resources and periodically issues a statement of “National Priorities for Enforcement and Compliance Assurance.” The current statement was issued in May 2007 and was intended to cover the Fiscal Years 2008-2010. These priorities include reducing toxic air emissions pursuant to the Clean Air Act and compliance with Clean Water Act requirements, especially for commercial farms (Concentrated Animal Feeding Operations, or “CAFOs”) and sewer system operations.

With the new administration, many anticipate some shift in focus; however, it is unlikely there will be a change in the stated priorities. Instead, with a Democratic administration, we are more likely to see stepped-up efforts in investigations and enforcement of the established priorities.

Spills & Kills – Response Info

Roy Shelley — Thu, 18 Jun 2009 13:07:00 GMT

Anyone who witnesses the dumping or discharge of chemicals, oil, or other potentially hazardous substances should contact DHEC through their 24-hour emergency response Hotline line at 1-888-481-0125 (in Columbia, call 253-6488).

These guidelines can be found on DHEC’s website at http://www.scdhec.gov/environment/lwm/html/er.htm and specifically apply to:

dumping, spills and releases of hazardous substances, including but not limited to oil and petroleum products, chemicals, hazardous waste, waste oil, pesticides, and other pollutants
fish kills or pfiesteria-related calls
illegal open burning of items such as tires, plastic, copper wire, and asbestos covered materials (open burning of land clearing and/or yard debris DOES NOT constitute an emergency and should be reported to the local DHEC EQC office on the next business day).

DHEC is charged with responding to the reported incident, and, if appropriate, to institute the Emergency Response Program, which provides the regulatory authority over the incident. As described by DHEC, “[t]he program makes sure the spiller is identified and responds appropriately to the spill/release and follows through with an appropriate cleanup. The program works with the spiller (Responsible Party) and offers guidance and oversight to make sure enough and proper equipment/manpower and cleanup capability is being provided at the scene.”

If you are unsure whether an incident calls for an emergency response, contact the local EQC office if the incident is observed during business; otherwise, please call the Hotline.

If you or your company is involved in the incident, your second call should be to your attorney. (If your company has an environmental compliance or risk manager, you should attempt to contact that person, who should then contact the company’s environmental attorney.) This does not imply that you or your company have committed a crime or other legal violation or that you will not respond properly to the incident. However, an attorney can act objectively to assist in gathering the information necessary to ensure an appropriate response and to coordinate with DHEC and others who may be involved in the incident or the response.

How many agencies does it take to screw up an ocean?

Roy Shelley — Wed, 17 Jun 2009 12:28:00 GMT

“ The oceans, our coasts, and the Great Lakes provide jobs, food, energy resources, ecological services, recreation, and tourism opportunities, and play critical roles in our Nation's transportation, economy, and trade, as well as the global mobility of our Armed Forces and the maintenance of international peace and security. We have a stewardship responsibility to maintain healthy, resilient, and sustainable oceans, coasts, and Great Lakes resources for the benefit of this and future generations.”

So begins the June 12^th Memorandum from President Obama to the executives of over 20 different agencies who have some degree of responsibilty for our oceans and Great Lakes. With such a broad array of agencies, and over 140 different US laws affecting these areas, conflict and impasse have often been the norm.

Water covers 75% of our planet. These vast open waters provide the base necessary for the production of fresh water and oxygen - fundamental necessities of life - and yet we continue to abuse our water more than 35 years after the first Earth Day.

Oceans and other large bodies of water face challenges related to pollution, water quality, habitat loss, fishing impacts, invasive species, disease, rising sea levels, climate change, and acidification. (See NRDC’s oceans documents for more details.)

The President’s Memorandum creates an “Interagency Ocean Policy Task Force” to recommend a comprehensive policy for maintaining and protecting our oceans, coasts, and Great Lakes, to include recommending “a framework for effective coastal and marine spatial planning” to prevent "ocean sprawl" as developments for offshore energy and other uses increase.

This is not the first national attempt to address these issues. In 2003 and 2004, national commissions were established to examine the challenges and issue recommendations. (See the Pew Oceans Commission and the U.S. Commission on Ocean Policy.) The commissions did an admirable job documenting the concerns and made numerous recommendations. Although some measures were implemented in various corners within the overlapping governmental entities responsible for the oceans and Great Lakes, interest at the top levels quickly wained. Hopefully President Obama’s Memorandum will redirect attention to this critical area of environmental concern.

Towards a sustainable seafood diet (Do more than “See food, eat food.”)

Roy Shelley — Tue, 16 Jun 2009 13:12:00 GMT

Growing up in South Carolina, I recall fondly the many trips to our beaches, not only for sun, sand, & surf but also for the constant search for “the best” seafood restaurant. Of course “best” then was usually evaluated in terms of variety and price. Today, beach trips are still a treasured respite (‘tho I now more often succumb to the lure of the mountains) but the factors which define the “best” seafood have shifted. Perhaps we had less pollution and over-fishing when I was young (more likely I was just blissfully unaware), but today the temptations of my palate are often overruled by the knowledge in my forebrain.

Luckily, we do have some information sources to help us in our choices. The National Resource Defense Council (NRDC) has published a Sustainable Seafood Guide with these tips for making your seafood selections (See http://www.nrdc.org/oceans/seafoodguide/):

Seven Quick Tips for Selecting Seafood

When in doubt about choosing seafood in a store or restaurant, here are seven basic guidelines that you can follow to help pick seafood that is healthy and sustainable:

Eat lower on the food chain

Smaller fish tend to be more plentiful and better for your health because they contain less mercury. Great small seafood to choose includes squid, oysters, mackerel, sardines and mussels.

Buy American

American seafood isn't perfect, but the U.S. variety of a particular type of fish is generally better than its imported counterpart because this country has stricter fishing and farming standards than other parts of the world.

Buy wild

Given current issues with the environmental impact of fish farming, a wild-caught fish is almost always better than a farmed fish of the same variety for your health and the environment.

Eat local

Unless you're eating fish from a nearby body of water, it has to be frozen or transported, which uses more energy. And it's very likely that it was caught or farmed en masse in order to keep the price down. You're usually better off eating the local variety of a particular type of fish instead of its counterpart from across the country, unless that species has been depleted in local waters. (See the NRDC's Eat or Avoid? section for more guidance.)

Buy from trusted retailers

Certain businesses have set higher standards for the seafood they sell in their stores, and many have pledged to create long-term sustainable seafood plans. Find guides to good retailers at the Conservation Alliance for Sustainable Seafood Solutions and Greenpeace.

Ask where your fish came from

The health of different species varies by region. Alaskan seafood such as salmon and halibut, when caught in sustainable ways, is generally good for you and the environment.

Look for the blue sticker

The Marine Stewardship Council certifies seafood that is caught or raised in a sustainable, environmentally friendly manner. Items that meet its criteria are marked with a MSC-certified sticker like the one shown here.

Hopefully I’ve not ruined anyone’s dining pleasures (apologies to those Chilean Sea Bass enthusiasts), but with a little information we can enjoy our natural resources enjoyably and responsibly. Bon Appétit!

A fight over $700 Million? How about protecting a $30 Billion/Year Asset?

Roy Shelley — Mon, 15 Jun 2009 20:46:00 GMT

According to a study by USC, South Carolina’s natural resources are a $30 billion per year asset to our state’s economy. The study by the University of South Carolina's Moore School of Business, titled "Underappreciated Assets: The Economic Impact of South Carolina's Natural Resources," is available online at the Moore School's Division of Research Web site.

The researchers measured the annual economic activity associated with certain resources such as land and water, and concluded that more than 230,000 jobs are tied to S.C.’s natural resources.

While many jobs and economic activities can be tied directly to our natural resources, probably one of the least-recognized advantages is the attraction of such resources to talented, high-level individuals in industries that may have little direct connection with natural resources; i.e., intelligent, talented people who want to live and work in an area with abundant, clean, and useable natural resources. While difficult to measure in quantitative terms, the studies authors conclude that “quality natural resource-related amenities and recreation opportunities … provide a magnet for human capital."

The study also related this information for the year 2008:

Visitors and local residents who took advantage of South Carolina's most famous recreational assets – its sandy beaches and ocean surf – added about $3.5 billion to the state's economy and supported nearly 81,000 jobs.
Fishing, hunting and wildlife viewing added about $2.2 billion to the economy and supported nearly 59,000 jobs.
The state's forestry industry exported more than $1 billion in forest products and supported nearly 84,000 jobs.
Mining activities added nearly $219 million to the state's economy and supported more than 2,500 jobs.
Commercial marine fisheries in South Carolina added about $14 million to the state's economy and supported 661 jobs.

The recent legal battles over stimulus funds and other budget issues pale in comparison to the impact of our natural resources on our state’s present and future economy. One hopes that business and government leaders will recognize the wisdom of the report’s conclusion - "Natural resources should always be considered integral to economic development" - and spend the time, energy, and effort needed to protect this $30 billion/yr jewel.

Nominee for US Supreme Court has thin but environmentally-friendly record

Roy Shelley — Wed, 27 May 2009 21:41:00 GMT

Judge Sonia Sotomayor’s judicial record in environmental cases is not very broad, but environmental groups are praising what is known about her interpretations of environmental law, and, most likely, are heartened by what they expect from an Obama nominee. (See NY Times story here.)

Although on the 2nd U.S. Circuit Court of Appeals in New York for almost 10 years, she has seen relatively few environmental cases. One that did come before her involved the question of whether the EPA could incorporate a “cost-benefit” analysis in determining what technology to require for compliance with the Clean Water Act. Judge Sotomayor ruled that because the statute does not include such an analysis, the EPA erred by using it. The decision was later overturned by the US Supreme Court, which included Justice Scalia’s opinon that a cost-benefit analysis could be used despite the statute’s lack of specific authorization for such. (Ironic, as Scalia is usually touted as the premier “strict constructionist.")

It is unlikely, however, that a Justice Sotomayor would shift any balance of power on the high Court; if confirmed, she would replace Justice Souter, who often voted in favor of greater environmental protections. In the future, however, a “green justice” with Judge Sotomayor’s experience (as a private attorney and as a trial court judge –none of the current justices have ever been a trial court judge) could wield great influence on environmental issues. It is likely that the Court will hear cases involving climate change, the definition of “navigable waters”, endangered species, and CERCLA (Superfund) issues in the near future.

Aiken to Receive EPA Recovery Funds

Roy Shelley — Wed, 20 May 2009 13:10:00 GMT

The EPA announced today that it will allocate $600,000 of the American Recovery and Reinvestment Act (ARRA) funds to the city of Aiken for environmental remediation projects.

Areas of concern in Aiken include the Warrenville Mill Site and the former Avondale Mills in Graniteville, the site of a 2005 train accident which released a toxic cloud of chlorine gas, killing 9 people and leading to the loss of over 1,700 jobs. (click here for EPA news release)

On many occasions in the past, funding for environmental projects, especially remediation, has been subject to numerous political pressures. The drafters of the ARRA legislation attempted to build in procedures which will provide transparency and allow diligent environmental watchdogs (such as those we have in S.C.) to monitor projects like this one in Aiken. Hopefully this will provide efficient and effective use of the funds.

NRDC offers Advice for Staying Healthy at the Beach

Roy Shelley — Tue, 19 May 2009 14:16:00 GMT

With the beach season just around the corner, the National Resources Defense Counsel (NRDC) has posted its "Tips for a Healthy Trip to the Beach":

"Every summer, beach water pollution forces closings around the country. In 2007 alone, there were more than 20,000 closures and advisories across the country, as reported in NRDC's 2008 Testing the Waters report. Those closures and advisories happen because beachwater is contaminated with human and animal waste. ... Human and animal wastes contain bacteria, viruses, and parasites that make swimmers sick. The most common illness is stomach flu, which is characterized by vomiting, diarrhea, nausea and fever."

The NRDC therefore offers these tips for beach trips:

Make sure that the water has recently been tested and determined to be safe.
Avoid swimming for at least 24 hours after a rain storm, if there is an advisory, if the water looks cloudy, or if it smells bad. Build a sandcastle or play volleyball instead.
If possible, choose beaches that are next to open water or away from urban areas. They typically pose less of a health risk than beaches in developed areas or in enclosed bays and harbors with little water circulation.
Look for pipes along the beach that drain stormwater runoff from the streets, and don't swim near them.
If you can't find out if the beachwater is safe, complain to the local public health agency.

Unfortunately, swimming advisories at SC coasts are becoming a frequent summer occurence, especially in the more developed areas such as Myrtle Beach. DHEC's Beach Advisory page recommends that you "Check the local newspaper and television news stations. Look for advisory signs when you go to the beach."

Beach Advisories are not the same as swimming advisories. DHEC's Swimming Advisory page contains notices of impaired waters and an Advisory Map; these are waters which have long-standing pollution, and most of these, to many people's surprise, are in the upstate area.

It is somewhat disheartening to see so many areas of our beautiful state which pose serious health risks to us and our children. While there may be a legitimate debate over whether such risks have increased since our childhood or whether we have just become more attentive and effective in identifying the risks, we should all take an active and cooperative role in being good stewards of our children's inheritance.

U.S. Supreme Court issues CERCLA opinion on “arranger” liability and apportionment of liability

Roy Shelley — Tue, 12 May 2009 21:48:00 GMT

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, imposes liability for the release of hazardous substances on four categories of parties (referred to as PRPs – “potentially responsible parties”): 1) current owner/operator, 2) owner/operator at time of release, 3) arrangers for disposal/treatment, and 4) selectors of the facility to dispose/treat.

There are different rules and criteria that apply to each category, and the issue before the U.S. Supreme Court in an opinion filed May 4th (Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601 (U.S. Supreme Court, May 4, 2009)) was whether “an entity can be an arranger even if it did not intend to dispose of the product.” The Court held that some intentional action to dispose of a hazardous waste was required in order to be held liable as an “arranger” under CERCLA. In the case before it, Shell Oil Co. had sold hazardous substances to another entity and shipped them via a railroad carrier. Shell became aware that some of the substances had spilled (i.e., been “released”) by the railroad, but the Court held that “knowledge alone is insufficient to prove that an entity ‘planned for’ the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.” (In other words, an arrangement for sale of product is not the same as an arrangement for “disposal.”) The Court therefore found that Shell was not liable as an arranger under CERCLA for those releases.

On the issue of allocation of liability (and therefore, the allocation of costs for remediation and removal), lower courts have used a variety of factors to parcel out the costs to responsible parties, and many have followed the §433A of the Restatement (Second) of Torts; however, until now, the U.S. Supreme Court has not explicitly approved of this approach. The Court’s opinion in Burlington approves this analysis and confirmed that apportionment is proper if there is any “reasonable basis” for determining each party’s contribution to the harm.

It is also interesting to note that the District Court judge who made the allocation severely criticized the parties for failing to offer apportionment approaches and for following a “scorched-earth” litigation strategy - failing to acknowledge any degree of responsibility for the harm. The judge, of course, did not state that this had any effect on the apportionment of liability, but the reality is that it most likely did.

The Supreme Court opinion can be found here: Burlington opinion

Fourth Circuit Setback for “Green Diamond” Development

Roy Shelley — Wed, 29 Apr 2009 16:19:00 GMT

The Fourth Circuit Court of Appeals has dealt another blow to the controversial proposed development of over 4400 acres south of Columbia once known as Green Diamond. The property is off Bluff Road adjacent to the Congaree River. The proposed development depended in large part on the flood hazard determinations of FEMA. (The National Flood Insurance Act of 1968 directs FEMA to make these determinations, and such decisions control whether insurance will be available for development.)

In 2001, FEMA determined that the majority of the proposed development would be in a floodway, which would essentially make it impossible to obtain insurance without significant changes to existing levees, and that such changes to the levees would threaten already existing development on the Lexington County side of the Congaree. It was essentially a death-nail to the project.

A challenge was filed in the Columbia division of the U.S. District Court to FEMA’s determinations by the developer Columbia Venture LLC. Heathwood Hall Episcopal School, which is located in area, joined in the challenge as the FEMA determination could adversely effect future development at the school. (Full disclosure – my children currently attend Heathwood.)

In 2005, the District Court ruled that although Columbia Venture had actually received notice of the 2001 floodway determinations, FEMA had not properly published notice of these determinations in the Federal Register. The District Court therefore vacated FEMA’s flood hazard determinations, esentially telling FEMA to start over. (This would not necessarily have changed the ultimate floodway determination, but would give Columbia Ventures and others another opportunity to convince local governments to challenge FEMA’s determinations and perhaps sway the outcome.)

Earlier this month, however, the Fourth Circuit Court of Appeals reversed the District Court’s opinion, holding that Columbia Venture was not prejudiced by the late publication in the Federal Register. Columbia Venture LLC v. S.C. Wildlife Fed’n, 2009 U.S. App. LEXIS 6932 (4th Cir. Apr. 3, 2009). The reversal reinstates FEMA's 2001 floodway determinations.

There are still appeal avenues for the developer, but the scope of proposed development has already been scaled back tremendously. The City of Cayce is in the process of annexing part of the property (now called “Vista Farms”) and has been trying to devise its own development plans. Although there is a proposal under consideration to expand the already-existing Columbia waste-water treatment plant, another large portion of the property has already been sold for farmland. Therefore, it appears that most of this land will remain undeveloped.