Legal Aspect of Environmental Permitting in the Emergency Response Environment (2015) / Chapter Skim
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3 LEGAL ASPECT OF ENVIRONMENTAL PERMITTING IN THE EMERGENCY RESPONSE ENVIRONMENT By Carlos Sun, University of Missouri, and Douglas Williams, Saint Louis University School of Law I INTRODUCTION Staff interviews, case studies, and the Web survey described in this legal digest provide a composite picture of the various approaches agencies have adopted to meet the challenges posed by environmental compliance requirements in the case of emergencies.
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4 Previous digests have described the environmental review of transportation projects in great detail. As can be gleaned from such digests, environmental review may present a demanding set of information gathering, analytical, consultative, and substantive regulatory obligations.
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5 stages in the decision-making process.9 Thus, the EIS serves as an "action-forcing device to ensure that [NEPA's] policies and goals…are infused into the ongoing programs and actions of the Federal Government."10 Each federal agency is responsible for implementing NEPA, and each has promulgated regulations to meet that responsibility.
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6 regarded the status quo, or baseline, as the environmental conditions prevailing when the old bridge, prior to its destruction, was functioning.21 For categories of projects that are known by agency experience not to have significant impacts, CEQ regulations authorize agencies to develop "categorical exclusions."22 FHWA's regulations have followed the CEQ's approach, establishing three different classes of actions:23 • Class I: significantly affect the environment and require the preparation of an EIS; • Class II: do not individually or cumulatively have a significant environmental effect and are deemed to be "categorically excluded" from further NEPA review; and • Class III: environmental impacts of which are not clearly understood and require an "environmental assessment" (EA)
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7 tent with the terms used in the regulation."28 Courts have, however, rejected agency attempts to shoehorn projects into a categorical exclusion when the governing regulatory text embraces projects of a much smaller scale or a different character.29 The final class of agency actions, Class I, includes actions that will have a significant impact on the environment and will ordinarily require the preparation of an EIS. FHWA has provided four nonexclusive, but recurring categories of projects that are normally deemed to fall into this class.30 Other actions that require an EIS include those that an EA or other environmental study reveals to have significant effects on the human environment.
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8 That standard of review also generally governs challenges to the adequacy of an agency's EIS.
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9 priate requirement of State law."57 These conditions must then be incorporated into the federal permit or license. Federal agencies are prohibited from issuing permits or licenses unless a state certification has been obtained by the applicant or such certification has been waived under the terms of the CWA.58 To facilitate a discussion of the CWA requirements that may affect transportation projects, it is important to distinguish between a variety of permits that may be available or applicable under the CWA.
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10 fill material" to include, among other things, "[p] lacement of fill that is necessary for the construction of any structure or infrastructure in a water of the United States; the building of any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material for its construction;" and "road fills."62 Like the National Pollutant Discharge Elimination System Program discussed above, permits under the Section 404 program may be issued on a general or individual basis.
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11 NAAQS are implemented through state implementation plans, which may include a variety of source controls and transportation control measures to reduce emissions, and the resulting concentration in the ambient air, of those pollutants for which NAAQS have been established.72 In general, the air quality impacts of transportation projects are subject to oversight by state and local governments through planning processes and transportation control measures that are incorporated into state implementation plans. To ensure that federally funded transportation projects are consistent with state implementation plans, and that such projects do not undermine the states' efforts to attain the NAAQS, the Clean Air Act subjects such projects to what is known as a "conformity determination."73 The conformity requirement applies only in those areas that are not attaining the NAAQS for any of the following pollutants: ozone, carbon monoxide, particulate matter, or nitrogen dioxide.74 FHWA is responsible for making conformity determinations for transportation projects that the agency funds or approves.75 For FHWA transportation projects, conformity can be determined in either of two ways.
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12 ment.82 The basic requirements of the regulatory program include: • Generators: must determine whether the wastes they generate or that come within their possession and control are hazardous; maintain records that identity the quantity, characteristics, and disposition of any hazardous wastes that are generated; obtain a waste identification number for the waste from EPA; if offsite disposal is contemplated, properly package and label; document the movement and treatment, storage, or disposal of the waste through a waste manifest tracking program; and select only permitted treatment, storage, or disposal facilities for the disposition of hazardous wastes.83 • Transporters: accept hazardous wastes for transport only if the wastes are accompanied by appropriate manifest; deliver hazardous wastes only to facilities designated. 84 • Treatment, Storage, or Disposal Facilities: obtain a permit from EPA or an approved state program and comply with applicable recordkeeping, financial responsibility, and performance and design standards, and take corrective action to address any onsite releases of hazardous wastes.85 RCRA also seeks to discourage land disposal of hazardous wastes.
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13 EPA's emergency authority under the SWDA may be invoked simultaneously with CERCLA's response and liability authorities.92 a. Response Authorities. -- To promote timely responses to releases of hazardous substances, CERCLA directs the president to revise and update a National Contingency Plan (NCP)
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14 CERCLA also includes some affirmative defenses to claims of liability, but these defenses have been strictly limited by the courts. Section 107(b)
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15 this section, we briefly discuss three of the laws most commonly encountered in transportation projects and most likely to be implicated in the emergency response environment: Section 4(f) of the Department of Transportation Act, the Endangered Species Act, and the National Historic Preservation Act.
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16 tation project does not incorporate land from a Section 4(f) property, but the project's proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f)
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17 species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species."145 The ESA further adopts a policy "that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of" the ESA's objectives.146 The ESA is administered jointly by Fish & Wildlife and the Department of Commerce's National Marine Fisheries Services, better known as NOAA-Fisheries. NOAAFisheries is responsible for marine species, while the Fish & Wildlife is responsible for all freshwater organisms and terrestrial species.
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18 will not cause jeopardy.160 Incidental takings are "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant."161 Among other things, the incidental take statement in a biological opinion may 1) specify the impact the incidental take will have on the affected species; 2)
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19 creates a National Register of Historic Places (National Register) and procedures for placing sites and structures on the National Register.174 The NHPA also created the Advisory Council on Historic Preservation (Advisory Council)
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20 agency may request the Council to participate or further consult with the SHPO "to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or mitigate adverse effects on historic properties."190 The process to develop and evaluate such alternatives includes notifying the Council and providing a period for public comment. If the agency and the SHPO agree on an appropriate alternative, or if the Council participates and likewise agrees, the parties may enter into a memorandum of agreement, which will govern how the undertaking is be to completed.191 The agency must, however, exercise independent judgment in its Section 106 determinations; NHPA requires that, "the determinations of effect, adverse effect, or no effect by the appropriate federal agency official be an independent one, and not simply a ‘rubber stamp' of the state's work."192 If the consulting parties cannot reach agreement, the Council must be given an opportunity to provide comments to the agency, which in turn must consider such comments in reaching a final decision.193 The Council's regulations provide that the undertaking agency need not defer to the Council's comments or, indeed, those of the SHPO: "Having complied with [Section 106's]
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21 sary costs and delays in the environmental review process. In this section, we consider the legal requirements pertaining to the participation of stakeholders and the procedures that must be followed in the environmental review process.
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22 of inclusive approaches early in EIS development.213 More recently, Congress itself has stepped in to structure the environmental review process for transportation projects, emphasizing the need for greater efficiency and coordination among federal, state, and local agencies.214 To this end, Congress created an additional category of agencies -- "participating agencies" -- that may be invited by lead agencies to participate in the environmental review process.215 Lead agencies, participating agencies, and cooperating agencies have overlapping, but distinct roles in the environmental review process for transportation projects. In addition to the responsibilities described above, lead agencies for transportation projects are now responsible for establishing a "coordination plan."216 The plan governs public and agency participation in, and comment on, the environmental review process, and may include a schedule for completion of the process.217 Participating agencies involved in the environmental review process for transportation projects may broadly include any federal or nonfederal agencies "that may have an interest in the project."218 They are charged with 1)
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23 2. Public Participation in the Environmental Review Process By its terms, NEPA does not expressly address the extent to which interested members of the public may or must be involved in the environmental review process.
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24 public hearings are required by statute248 or by the agency's implementing regulations.249 E Emergency Provisions Applicable to Environmental Review of Transportation Projects There are a number of emergency provisions that may be applied in reviewing transportation projects for compliance with environmental requirements.
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25 from the requirements of environmental laws other than NEPA. Indeed, in Hayne Blvd.
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26 have profound impacts on public safety and transportation needs, but may not rise to the level of an emergency warranting a presidential declaration under the Stafford Act. FHWA, however, decided to limit the scope of the rule to emergencies (other than Stafford Act emergencies and major disasters)
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27 was "simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion," the emergency rule was deemed inapplicable.281 This decision was, however, reversed by the Supreme Court on unrelated grounds, making its precedential effect somewhat tenuous. In other decisions, the courts have sustained alternative arrangements under the emergency rule for flights of military aircraft contrary to the terms of an operative EIS, because the modified flight schedule was deemed essential to supply military equipment and troops for ongoing military operations;282 and in circumstances where agency action was needed to avoid an imminent crisis beyond the agencies' control.
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28 agency" if "the facility is structurally unsound and in danger of imminent collapse."290 b. The Clean Water Act. -- The Clean Water Act (CWA)
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29 from EPA or an authorized state authority, and to meet stringent requirements. RCRA, however, authorizes the president to "exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from [otherwise applicable regulatory requirements]
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