Brooks Law Digest: Pollution

The National Marine Fisheries Service has announced the availability of the final restoration plan for birds, marine mammals, oysters, and sea turtles pursuant to the requirements of the consent decree following the April 20, 2010, Deep Water Horizon explosion and oil spill. The cost of implementing the final plan is $99.6 million, and the specifics of the plan are available at a number of locations in the geographically-affected region.

The 9th Circuit Court of Appeals has vacated a National Pollutant Discharge Elimination System (NPDES) Permit for Idaho CAFOs, finding that the permit issuance was “arbitrary, capricious, and in violation of law because it lacks sufficient monitoring provisions to ensure compliance with its discharge limitations.” The opinion contains substantial detail about CAFO manure pollution and EPA discharge monitoring obligations. The permit was challenged under the Clean Water Act by Food & Water Watch and Snake River Waterkeeper.

The Federal Energy Regulatory Commission is seeking public comments on the potential environmental impacts of a proposed natural gas pipeline project in Seneca County, Ohio. The Commission is specifically interested in comments that address environmental impact on geology, water resources and wetlands, vegetation and wildlife, endangered and threatened species, cultural resources, land use, air quality, noise, and safety. FERC is accepting comments through October 8, 2021.

The FDA has reopened the public comment period through September 23, 2021, on the environmental impacts of oxybenzone and octinoxate––ingredients found in some over-the-counter sunscreens that have been banned in Hawaii due to evidence of harm to coral reefs and other marine life. Public comments will assist the agency in the preparation of its Environmental Impact Statement and determinations about the future availability and labeling for sunscreens that contain these ingredients.

Public Employees for Environmental Responsibility has filed a complaint with the National Archives and Records Administration requesting that the agency intervene to stop the Environmental Protection Agency from failing to maintain records related to its development of the Waters of the United States rule and chemical risk assessments. The complaint charges that the “EPA routinely allows the original versions of its internal communications and draft documents to be erased when they are edited” and does not require any “track changes” function to record either the changes or the authors. The complaint claims that "this practice violates the Federal Records Act by shielding the agency’s decision-making process from outside review and retaining only the final version of key documents.”

North Carolina Governor Roy Cooper has signed into law Senate Bill 605 which directs the state Environmental Management Commission to develop “a general permit for animal operations that includes authorization for the permittee to construct and operate a farm digester system.” The law will also allow preexisting swine farms to construct or renovate farm digester systems if doing so meets several requirements related to capacity and location. The law additionally addresses the formation of voluntary agricultural districts containing animal agriculture facilities to reduce nuisance liability and the scope of local agricultural advisory boards.

In a suit filed by a coalition of environmental and food safety organizations, a Washington state appeals court has found that waste discharge permits for dairy farms in the state are insufficient under both the Clean Water Act and the state’s Water Pollution Control Act. The court held that while current permit conditions meet some requirements, they do not adequately address manure lagoons.

The Iowa Supreme Court has dismissed a lawsuit brought by Iowa Citizens for Community Improvement and Food & Water Watch seeking to compel farmers to reduce levels of nitrogen and phosphorus in the raccoon river. Overturning a lower court ruling, the court held that the plaintiffs did not adequately demonstrate a concrete injury to establish standing, and that “plaintiffs’ effort to repurpose the historically narrow public trust doctrine to solve a complex environmental problem presents a nonjusticiable political question.”

The Sierra Club and a proposed class of consumers both have filed suit against The Coca-Cola Company and Blue Triton Brands, Inc. (formerly known as Nestle Waters North America, Inc.) alleging that claims their bottles are 100% recyclable are deceptive because many plastic bottles put into recycling bins end up in landfills or are incinerated. The complaint states this “falsely informs consumers that they are making an environmentally responsible choice when they purchase and dispose of Defendants’ plastic water bottles.”

Iowa Governor Kim Reynolds has signed into law House Bill 522 which will allow “qualified confinement feeding operation[s]” to use anaerobic digester systems “to process manure by employing environmental conditions including bacteria to break down organic matter in the absence of oxygen, and is used for producing, collecting, and utilizing a biogas.” Such systems would be an alternative to the use of a manure storage structure that employs bacterial action maintained by the utilization of air or oxygen and includes aeration equipment.