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A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

February saw the typical array of important environmental decisions and federal regulatory offenses.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will soon likely be grappling with a difficult place case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court declared the affirmative defenses which were made part of the Texas State Implementation Plan (SIP) and then applied to particular unpermitted emissions from controlled sources during periods of startup, shutdown or malfunction. These defenses have been challenged from the Fifth Circuit and have been rejected. On the national stage, EPA has been involved in litigation over those affirmative defenses and recently excluded from a”SIP Call” that the Texas application, which was pushed out. This EPA decision is being challenged in the DC Circuit (see Case amount 20-1115),with the State of Texas arguing as a intervenor that any issues involving Texas belong into the Fifth Circuit, and not from the DC Circuit since the Act allows regional issues to be decided at the regional federal courts.
Enbridge plans to replace an present pipeline using a brand new”line 3,” transport oil from Canada to Wisconsin. The plaintiffs sought a preliminary injunction of the foundation that the Corps had not sufficiently considered the effects of potential oil spills. After reviewing the record, the court stated that the plaintiffs had not met their significant burden to show that a preliminary injunction of a job near completion was justified.

On February 17, 2021, the court decided that this complicated and expensive CERCLA (or Superfund) case. The appellants here (such as Union Oil of California) find themselves embroiled in a longstanding CERCLA cost recovery and job dispute, and sought to undo the lower court’s approval of a Consent Decree which will largely bring this dispute to a conclusion. A drum recycling centre was situated in the CERCLA site, situated near North Providence, Rhode Island. Other industrial activities included chemical manufacturingand concentrations of dioxin have been found in a nearby river, so generating a fish advisory. The court affirmed the lower court’s ruling, finding that the judge had clearly mastered the intricate details in this scenario, and some arguments to the result that the court had abused its discretionary powers had been rejected. The court’s conclusion, reviewing the evidence and EPA’s processes, is exceptional.
U.S. District Court for the Middle District of Pennsylvania
Lower Susquehanna Riverkeeper, et al, v. Keystone Protein Company
On February 18, 2021, the court ruled with this Clean Water Act Citizens Suit in which the plaintiffs contended that the suspect, a poultry waste processing centre, had broken its state NPDES permit many occasions by surpassing the plant’s license limits for nitrogen. The defendant claimed that the case ought to be ignored because it’s entered into Consent Orders with Pennsylvania DEP from 2012 and 2017 that require the defendant to substitute its wastewater treatment facility by June 1, 2021. The court rejected this defensebased on the conditions of the federal Clean Water Act (CWA)–since the state equivalent to the CWA, the Pennsylvania Clean Steams Act, wasn’t”roughly comparable” to the Clean Water Act. The court declared that this issue hasn’t been decided by the Third Circuit Court of Appeals.
FEDERAL REGULATORY NOTICES
U.S. Department of Transportation
On February 9, 2021, the DOT advised the people that the licenses required to begin work over the North Houston Highway Improvement Project have been at hand, and any petitions for judicial review must be filed within 150 days of the date of the publication of the note. This is going to be a significant project, involving the replacement of a significant street cutting through the City of Houston and likely displacing many homes and businesses. (View 86 FR 8828.)
Department of the Interior
Also on February 9, 2021, the Department of the Interior issued a note delaying the effective day of rules which will greatly update the present agency enforcement policy regarding the”taking” of migratory birds. (View 86 FR 8715.) The final rule was released on January 7, 2021, and the effective date has been extended until March 8, 2021. The public is invited to submit comments regarding whether the effective date ought to be extended beyond this date. The rule is controversial, so its destiny could be uncertain.
(View 86 FR 8845.) A Presidential task force, to be headed by the Director of Science and Technology Strategy, can set the parameters of the policy for federal agencies. The thrust of the directive seems to incorporate a few of the concepts of a current EPA regulation on scientific evidence, such as the requirement for peer evaluation.
EPA
On February 12, 2021, EPA notified the public that EPA Region 6 has granted the request of the State of Texas that its delegated Clean Water Act NPDES regulatory authority has been augmented to include regulating discharges from oil and gas installations (mainly produced water discharges) in the State of Texas. EPA will maintain authority over offshore oil and gas discharges. (View 86 FR 9332.)
OSHA
On February 16, 2021, the Occupational Safety and Health Administration (OSHA) released a notice of proposed rulemaking, inviting comments on a proposal to modify the existing Hazardous Communication Standard to grapple with the UN’s”harmonized system of classification and labelling of chemicals.” This is a really long note, over 250 pages of Federal Register text. Comments are due by April 18, 2021. (View 86 FR 9576.)
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