Thank you so much for joining me today. I’m Lauren, I’m an attorney in New Orleans, and I’m here to talk about water law. I ‘ve got a handout with my contact information, so if you end up with any questions feel free to shoot me an email.
The title of my presentation is “All About Water: Recent Regulatory, Legislative, and Legal Updates,” but my unofficial title is really “How to Stay Off the Radar and Out of Jail.” Water law got somewhat exciting this year, with some jail time and criminal penalties getting imposed, and I think it is always a good idea to know what NOT to do.
40 CFR 112. A facility is covered by the SPCC rule if it has an aggregate aboveground oil storage capacity greater than 1,320 gallons or a completely burden storage capactiy greater than 42,000 gallons AND there is a reasonable expectation of an oil discharge into ‘navigable waters of the U.S.” Navigable waters of the US This is going to come up a lot. This is pretty broadly defined and nebulously defined. It anything you can float a boat on, like a river, and things that are connected to anything you can float a boat on – like a wetland. And it doesn’t have to be direct – you can spill into a ditch, the ditch over-flows into a storm drain and the storm drain eventually reaches the Gulf, that means you are covered by the plan. Recall that this is a capacity-based rule. Your contains can be nearly empty but that doesn’t matter. How much storage capacity do you have, adding up all the containers you might have around. STEPS (1) Prevent oil spills with suitable containers, secondary containment. (2) have an SPCC Plan. That describes routine operating procedures, control measures to prevent oil spills and countermeasures - to use in case of a release. AND (3) Comply with the plan. If you set up a training program. If you plan to test pipelines, check on tanks, if you move things around on your facility and need to update your diagram, DO IT
In the month of August alone, the EPA fired off three different press releases about Louisiana. All of them had only one subject: SPCC violations. In fact, pretty much every press release I get from Region 6 of the EPA is about an SPCC violation. These are not enormous fines BUT you also get that EPA press release going out, which can get picked up by local news, and you get additional heightened scrutiny from both EPA and state inspectors. GO THROUGH
For the most part, there are purely “on paper” issues. We are not talking about secret pipes and illegal discharges. If you have an SPCC plan, take care of it. Update it – and if you say you will train people, actually document that. If you say you’ll do tank inspections, do them, and write it down.
This is from the EPA’s Dashboard website, which takes state and federal inspection data and maps it. Unfortunately their most recent information for Louisiana is from 2009 so this is a little bit old. Still lots of interesting information publicly available here. You can zoom in down to the level of a single facility and find out the facility’s name and what they did wrong and how much they were fined. Here, you can see all of the facilities in Louisiana that fall under the Clean Water Act. That means they either need to have a discharge permit, like an NPDES permit, or they need to have an SPCC plan, or both. You can see the blue dots were the facilities that were actually inspected by either the state or feds in 2009. This is less than half of the total facilities. About 60% of the “major facilities” and around 10% of the “non-major facilities.” Clean Water Act Majors are wastewater treatment plants with a flow of more than 1 million gallons per day, and other large industrial sources. Non-major is everything else. There is a goal that at least 50% of the majors are inspected every year. With non-majors, there is no goal – and in 2009, they only got to about 10%.
Same map, same year, but this layer shows of those inspected facilities from the last map, which of those actually had violations. You can see a lot of the violations were found along the 1-10 corridor and, to a lesser extent, between Lafayette and Houma.
This map might be more reassuring. It shows, out of those facilities on the last map that had violations, which facilities actually had enforcement actions taken against them in 2009. A fairly significant drop off here. The majority of noted violations do not actually result in enforcement actions against you.
And here we have pared our map down almost to nothing. This reflects – of those facilities subject to Clean Water Act jurisdiction – that were inspected in 2009 – and found in violation of some permit or rule – and had an enforcement action taken against them – AND were actually assessed a monetary penalty. I suspect that when we see 2012 data, this map is going to look a little more populated. There have been a lot of SPCC plan-type penalties assessed this year, for example, and some criminal convictions this year too – which we’ll discuss later.
This chart compares the number of facilities inspected in the state to the national average of inspections. What’s interesting is the big increase from 2008 to 2009. and when I saw this I initially thought it would be attributable to an increase in federal inspections, based on the change of presidential administrations that took over in the beginning of 2009. However….
At least for Louisiana, the number of EPA inspections actually decreased. That little sliver of blue at the end of the line went from a small to almost nonexistent. Instead state inspections of facilities for Clean Water Act compliance has increased pretty significantly. According to these numbers, if you get that knock on the door, it is almost guaranteed to be the DEQ, not the EPA. But again, this was 2009. In 2012, we do have some more EPA activity in the state cracking down on these SPCC plan.
Recall that the total number of facilities inspected was around 700 in 2009. Well, those inspections may have been targeting specific known or suspected violations because almost 600 of those inspections led directly to a funding of a “serious violation.” Serious violations are when a "toxic" pollutant is measured to be more than 20% over the permitted limit, or if a "conventional" pollutant is more than 40% over limit. Failure to submit monitoring data is also a serious violation. Also interesting is this big disparity between Louisiana’s number of serious violators and the national average I think a lot of that is simply a reflection of the fact that there is almost no way for a potential discharge in this state to NOT lead directly or indirectly into a navigable waterway, particularly in the southern portion of the state – and navigable waterway equals Clean Water Act jurisdiction, which in turn equals more potential exposure to inspections and violations.
And this slide just shows the four types of potential enforcement actions broken down by type. More state “informal” enforcement actions although a pretty significant amount of state formal enforcement actions here too. Formal actions are defined as administrative orders or judicial actions – informal actions is everything else.
Interesting outcome here. Although inspections went up, and the number of enforcement actions went up, penalties decreased from 2008. Moreover, look at the amounts – we are talking about less than a million dollars statewide. I think this chart is going to look totally different in 2012 – we have some criminal convictions and some extremely significant fines and we have already passed the $1 million mark this year.
Back to 2012. Hydraulic fracturing is of course an extremely hot topic and a nationally controversial. At the federal level, fracking is currently unregulated under the Clean Water Act. Underground injections of water – like what happens in fracking operations – are regulated under the Safe Drinking Water Act. Both those statements, however, are gross over-simplifications of what is actually going on so I will just try to give you the high lights. If this affects you, just keep track of what’s going on because it is in a constant state of flux and the national spotlight is just focused on this industry. [INSERT]
Another hot topic in the national water conversation is conversation and sustainability. A big part of that is re-use. In fact, the EPA just released its 2012 Guidelines for Water Re-Use. However, locally, I would not be too concerned. The one time Louisiana is mentioned in the entire book is this clip: Louisiana does not have regulations or guidelines specifically addressing water reuse.
That’s probably explained by this chart of rainfall averages in all of the Region 6 states. That’s Louisiana in red, all the way at the top. Notwithstanding recent drought events, we are historically a wet state and minimizing water use or enforcing water re-use just has not been a priority. That may have to change but that is still in our future.
So, on to legislation. What new laws are out there? Louisiana has a law regulating hydraulic fracturing. Act 812 went into effect August 1, 2012. It enacts a new rule, La. Revised Statute 30:4, requiring that anyone with a hydraulic fracturing operating in the state FIRST Apply and get a work permit and SECOND, after completion of the work, file a full disclosure of what fluids were injected – including all the biocides, propping agents, anything that went down the hole. By chemical components and by volume. This is a disclosure only rule. You have to report what you did but what you are doing is otherwise not specially regulated. In response, DNR promulgated section 118 of Title 43 of the Administrative Code, which you see here. It goes on to include some specific instructions on where and how to disclose.
Not a lot else is going on in the world of water law in Louisiana. Two other new acts were passed. Act 261 gives the State the opportunity to enter into cooperative agreements for the sale of surface waters.
And Act 809, which is weird. It makes the act of opening a water control structire which will result in saltwater draining into a natural water body a crime. You can get jail time, a fine, both, and you lose your hunting and fishing licenses, which makes me think that this has something to do with shady hunting or fishing practices.
Congress thus far has pretty much done nothing. There are two bills technically still alive out there. SB 2122, introduced by Rand Paul, called the “Defense of Environment and Property Act”. It is supposed to clarify the definition of “navigable waters” and would exclude from that definition things like wetlands and anything without a direct surface connection to a navigable water. Govtrack gives this bill a full 1% chance of making it into law. It has been sitting in a committee since February.
And SB 2245, which is much like Senator Paul’s bill, and deals with the uncertainty of what is a navigable waterway. This one has a 2% chance of becoming law and has been sitting in a committee since March.
More and more states are doing what Louisiana did, requiring disclosure of hydraulic fracturing fluid components. However, there is no movement toward anything like this from Congress.
Water in the Courts The Clean Water Act got all the way to the Supreme Court this year. Sackett v. EPA dealt with CWA section 309(a) compliance orders. Compliance orders are these powerful little fiats that the EPA can issue directly targeting a single property. Saying, surprise, your renovation project affects a wetlands that is adjacent to a navigable waterway, so you are ordered to stop what you are doing, clean up, and face fines of up to $75,000 per day. The Supreme Court said this is way too harsh. You have no opportunity to contest this before it goes into force. You need an opportunity to contest whether this is really a navigable waterway, whether you are really going to cause a discharge of a pollutant, and so forth. So now there will be more of a pre-enforcement opportunity to be heard and more due process built into this system.
Pruett dealt with the La. Land and Water Company and the LWC Management Company and their owner, Jeffrey Pruett. He owned and operated 28 wastewater treatment facilities in northern Louisiana. He was required to get – and did get – NPDES permits for his facilities that limited the amount of certain pollution discharges he could have, and required him to do some record keeping, sampling, testing and maintenance – all pretty standard for anyone with a discharge permit. He was found guilty of 1 court of knowingly violating an effluent limitation and several courts involving bad recordkeeping, and 1 court of violating some maintenance and operating requirements in his permits. Here’s the big part: he went to jail. He personally was sentenced to 21 months in federal prison. He and his companies were also jointly fined $850,000.
Arabie is a Louisiana state supreme court suit about an oil spill into the Calcasieu River. Some downriver employees at a different plant sued CITGO based on their exposure to gases coming out of that spill. They each got compensatory damages that were intended to compensate for their medical expenses. Also, they got much larger punitive damages – which are intended not to compensate but to punish the company for the spill. Louisiana law disfavors awarding punitive damages. You have to do really extremely stuff to get punitives assessed. The trial court, however, applied Texas law. So, much to I suspect the relief of industry statewide, the Supreme Court took a look, said this happened entirely inside the state of Louisiana, so Louisiana law applies, and we are vacating all of these punitive damages awards.
CTCO is a lot like Pruett, but with a plea bargain and no prison time. CTCO has a discharge permit but it did not collect or test any samples of its discharge, which it had to do under its permit. It looks like it knew that there was something getting discharged right then so it purposefully didn’t check. This happens to be a felony violation of your permit, so now it has to pay $525,000 and serve 3 years probation.
Thank you so much and, again, please don’t hesitate to send me questions or ask for copies of anything I talked about today.
Water Regulation and Enforcement On EPA’s Radar this Year: Your Facility’s SPCC PlanThe Spill Prevention Control and Countermeasure (SPCC) regulations are a part of the Clean Water Act. SPCC regulations require onshore production and bulk storage facilities to provide oil spill prevention, control, and countermeasures to prevent oil discharges. Does your facility need an SPCC plan? If you have one, are you in compliance?
Water Regulation and Enforcement AUGUST, 2012 ALONESt. Bernard Parish oil production facilities fined $29,400 for SPCC violations -Failure to conduct adequate self-inspections -Failure to provide adequate documentation of SPCC training -Failure to provide adequate secondary containment and equipmentPlaquemines Parish oil production facility fined $7,055 for SPCC violations -Failure to conduct adequate self-inspections -Failure of SPCC plan to discuss specific flowline high pressure devices and well shut-in valves -Failure of SPCC plan to anticipate environmental stresses on pipingCameron Parish storage terminal fined $14,400 for SPCC violations -Failure of SPCC plan to provide adequate schedule for tank integrity testing -Failure of facility diagram to list all oil tankage -Failure to properly manage retained stormwater
Water Regulation and EnforcementNO RELEASES PROMPTED THESE FINES
Water Regulation and Enforcementhttp://www.epa-echo.gov/echo/dashboard/dashboard_all.php?state=LA
Water in the CourtsSackett v. EPA, 132 S.Ct. 1367 (2012)
Water in the CourtsU.S. v. Pruett, 681 F.3d 232 (5th Cir. 2012) Appellate court upholds conviction and 21 months imprisonment for company owner and fine of company for Clean Water Act violations Company violated National Pollution Discharge Elimination System (NPDES) permit conditions and testing requirements
Water in the CourtsArabie v. CITGO Petroleum Corp. (La. 3/13/12). 89 S0.3d 307 Civil suit by exposed construction workers after major spill into Calcasieu River Louisiana Supreme Court says no punitive damages for exposed workers; upholds compensatory damages
Water in the CourtsU.S. v. CTCO Shipyard of Louisiana (EDLA) CTCO pled guilty to criminal violation of LPDES permit, did not collect or test any samples for discharge Fined $525,000 and 3 years probation