Contractors understand how difficult it can be on a technical level to do work in or near wetlands or other environmentally-sensitive areas. Such work is even more difficult due to complex, ever-changing regulations coming from the federal government under the Clean Water Act (“CWA”). The CWA applies to “navigable waters”, which are defined as “the waters of the United States.” To determine whether certain wetlands are “the waters of the United States”, contractors and owners have had to engage in fact-intensive “significant-nexus” determinations that turned on a lengthy list of hydrological and ecological factors found in regulations from the U.S. EPA. Recently, the U.S. Supreme Court struck down the applicability of those regulations and instituted a simpler test to determine whether wetlands on an owner’s property are regulated.

The U.S. Supreme Court recently issued an opinion in County of Maui v. Hawaii Wildlife Fund that further expands upon its opinions under the Clean Water Act.  This time, the Court addressed the issue of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater.  Point sources under the Clean Water Act are defined as “any discernable, confined and discrete conveyance … from which pollutants are or may be discharged,” including containers, pipes, ditches, channels, tunnels, conduits, or wells.  In County of Maui, a wastewater reclamation facility collected sewage from the surrounding area, partially treated it, and pumped the treated water through four wells hundreds of feet underground.  This effluent then traveled a further half mile through groundwater to the ocean.  Environmental groups brought an action under the citizen-suit provision of the Clean Water Act claiming that the city was discharging a pollutant to navigable waters without a permit required by the Clean Water Act. 

In my previous blog post, I advised that companies with federal environmental obligations should review the applicability of U.S. EPA’s temporary enforcement policy, entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” In that document, U.S. EPA stated that it does not expect to seek civil penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, and reporting or certification obligations, if they occurred as a result of the COVID-19 pandemic. Since releasing this temporary enforcement policy, U.S. EPA faced an onslaught of criticism on several fronts from those who believed that the agency was simply throwing up its hands and would no longer enforce environmental laws. As a result, U.S. EPA has issued several press releases as well as a letter to all members of Congress to “correct the record” on the temporary enforcement policy.

Everyone in the United States has been affected in some way or another by the COVID-19 pandemic, but many companies with environmental compliance obligations are facing impossible situations.  Worker shortages due to the pandemic as well as travel- and social-distancing restrictions imposed by many state and local governments have affected the ability of companies to carry out activities required by environmental permits, regulations, and statutes.  Companies may be unable to meet limitations on air emissions or water discharges and requirements for the management of hazardous waste.  Even if compliance is occurring, companies may not be able to provide proof because testing laboratories cannot timely analyze samples. Companies faced with these circumstances have three options to consider.

On July 30, 2019, Illinois Governor J.B. Pritzker signed into law Senate Bill 9, which places strict regulations on surface impoundments that are designed to hold an accumulation of coal combustion residue (“CCR”), commonly known as coal ash.  The term CCR encompasses fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers.  Surface impoundments are typically natural topographic depressions, man-made excavations, or diked areas, which are designed to hold an accumulation of CCR and liquids for treatment, storage, or disposal of CCR. This legislation resulted from well-publicized alleged discharges of coal ash from the Midwest Generation Powerton Electrical Plant in Pekin, Illinois, which was recently cited for groundwater contamination by the Illinois Pollution Control Board.  The Pollution Control Board found that Midwest Generation caused or allowed the discharge of coal ash constituents in groundwater.  The Board also found that the company violated state regulations by depositing coal ash cinders directly upon the land and creating a water pollution hazard. 

Illinois Governor J.B. Pritzker recently signed into law a $45 billion capital infrastructure plan dubbed “Rebuild Illinois”.  This plan allocates $33.2 billion for transportation, including $11 billion for the Illinois Department of Transportation’s multi-year plan and $14 billion for other road and bridge projects.  It also includes $4.7 billion for mass transit, $1 billion for passenger rail and millions for ports, aeronautics, and other projects.  The plan also appropriates $25 million from the Build Illinois Bond Fund to the Illinois Environmental Protection Agency for a green infrastructure financial assistance program to address water quality issues.  The terms “green infrastructure” encompasses a set of strategies that seek to better manage storm water, reduce urban heat island effects, improve air quality, and promote economic development and other sustainability goals.  Some examples include bio-retention gardens, green roofs, storm water swails, constructed wetlands, and permeable pavements. 

Contractors that often do work for the federal government are likely familiar with the National Environmental Policy Act (“NEPA”).  NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”   Once an agency issues a final EIS, the federal agency will provide environmental clearance via a Record of Decision (“ROD”).  Environmental and other citizens-organizations can attempt to delay or stop a federal project by challenging the processes under which an EIS and/or a ROD are prepared and issued.  The Eighth Circuit Court of Appeals recently decided a case presenting the question whether citizen groups must wait until an EIS and ROD are finalized and issued prior to filing suit under NEPA.