DENR Case Update
John C. EvansAssistant Attorney General
NCDOJ
Air Quality
United States v. Duke Energy 411 F.3d 539 (4th Cir. 2005) Changes made to coal-fired utility boilers
Link to nuclear… The issue was whether those changes subjected
the boilers to New Source ReviewState-of-the-art air pollution controls
BACT or LAERPredict Impacts from the source
Air Quality
NSR Applicability Requires an “emissions increase” Regulation had historically measured the increase in
“annual” emissions NC Federal Middle Dist. Court reads the regulations to
require an initial hourly increase Regulations Early Policy
Air Quality
4th Cir. (includes NC) Upheld the NC Middle Dist. Court Decision
Rational was different Clean Air Act definition of “modification” was
the same for NSR as for NSPS program
Appeal to US Supreme Court by environmental groups . . . US did not appeal.
Air Quality
Take Home Hourly test for all major sources in NC (and
other 4th Cir. States) Still use the annual test as well.
All other states use just an annual test. Policy [Check your policies before taking
enforcement and be sure to distinguish]Early policy – Agency was inconsistent with early
policy.
NSR Regulatory Changes
NSR Applicability Rule 12/31/02 (Final)
NSR Equipment Replacement Rule 10/27/03 (Final)
Utility Hourly Test Proposed
NSR Applicability Rule
12/31/02 Rule Actual Emissions Increase Using Projections Plantwide Applicability Limit Clean Unit Exemptions Pollution Control Project Exemptions
NSR Applicability
New York v. EPA Challenged the new rule 2005 Court upheld most of the reform package but
did strike down Clean Units and Pollution Control Projects
NSR Applicability
What is the impact of New York v. EPA? Limited because EMC approved the rule
changes but…Non-Attainment Rules went into effectAttainment Rules (PSD) have not gone into
effect
Equipment Replacement Rule
EPA proposed the Equipment Replacement Rule to help provide clarity (i.e. a “bright line test”) on the issue of what changes trigger NSR
Exempt if the change meets 3 conditions Replacing component (not the whole thing) Less than 20% of the replacement cost Does not change the basic design
Equipment Replacement Rule
DC Cir. Court stayed the rule Oral Arguments heard on 8 February 06 Not in effect in NC
Still using the multi-factor test to determine routine maintenance.
No current plans to adopt . . . yet
M&W Clearing
614 S.E.2d 568 (2005) Open burning --- however the size and scope
was unusual Nine large piles less than 1000 ft from building
Notice of Violation Civil Penalty Assessment of $36,000
What about the $10,000 per day?
M&W Clearing
State prevailed at OAH State prevailed in Superior Ct State prevailed in NC Court of Appeals
BUT – the decision was 2:1 Appeal to NC Supreme Court
M&W Clearing
Issues Factual Question
Nine Piles One Violation? Nine Violations?
Procedural IssueNotice of Violation stated one violationPast Practice provided that scattered piles was one
violation
M&W Clearing
Take Home Notice of Violation must be carefully drafted
Multiple violations – continuing violationsRe-issue the NOV if necessary to correct clarified issues
Procedures (written)Past ActionPolicy Memos – DAQ has an “enforcement tree”
Follow them, Update Them Note in your assessment if it is not covered
Public Records
Why Do You Care? Enforcement Cases Appealed Attorney asks you to prepare a document – a
statement – a report
Communication Written Oral
Attorney Privilege
McCormick (2004) Held that there was not an attorney work product
privilege for city attorneys
Work Product Thoughts and impressions of attorney Work prepared by the agency at the direction of
the attorney
Attorney Privilege
Legislative Response - Public Records Law Amended Provides protection for “Trial Preparation Material”
Applies to administrative proceedingsApplies to issues where there is a threat of litigation
Lessons Identify covered documentsNotify Attorney if threatened litigation
Attorney Privilege
Attorney Client Communications Different than work product Protected …. Not totally
Communications From AttorneyCommunications To Attorney?
Oral Communications
Inspections
Getting Into a Site While Staying Out of Trouble DENR Enforcement Training, June 2005
Issues: Warrant Consent Plain View
Luxury Wheels
Colorado case – Not NC but instructive Facts
Chrome plating company Company discharged to city sewer Permits
Allowed to “enter the premises”Permit included on on-property sampling box
Luxury Wheels
City regulators took samples During the day (open) At night (covert)
Samples at night were higher? Sampling taken over the course of about a
year revealed numerous violations of their permit limits.
Luxury Wheels
4th Amendment - unreasonable search and seizure if there is an expectation of privacy Wastewater flowing into manhole – no expectation
of privacyTrash on the side of the roadThe manhole wasn’t accessible to general public –
however once the wastewater gets into the pipe without any possibility of retrieval – no expectation of privacy.
WARNING – These decisions are fact specific. If you have ANY doubt . . . STOP
Luxury Wheels
CONSENT Warrantless search OK if consent if granted. Government argued that the source consented to the
search by accepting the permit with the sampling box permit condition
Company says they were forced to accept the condition
Court – “Close Call” Company had choice of installing more expensive
monitoring equipment.
Luxury Wheels
Closely Regulated Another exemption to the warrant
requirement Gas Stations in Wyoming Vehicle Dismantlers in New York Fishing in North Carolina
What about environmental regulation?
Luxury Wheels
“I am unaware of any precedent for declaring that a business is subject to warrantless searches as “closely regulated” solely because it is subject to general purpose environmental laws.
Luxury Wheels
Open Fields Another exception to the warrant
requirement … however Does not apply to removing objects such as
samples Particularly in this case were the waste water
was not visible.
Luxury Wheels
Take Home Training (review manual, ask for agency specific
training, etc…) CAUTION b/c exemptions (open fields, expectation
of privacy, closely regulated) are very fact specific Consent is the best - if you ask and don’t get consent
DO NOT ENTER Lost evidence Personal Liability (Trespass, Constitutional Claims)
Supplemental Environmental Projects
NC School Board v. Moore (2005) Supplemental Environmental Projects (SEPS)
are subject to the NC Constitutional requirement that penalties paid to NC agencies go to school boards
SEPS are not voluntary payments Feds not bounds by this requirement so sometimes
it may be advantageous to work with the Feds on enforcement.
Water Resources
Two Supreme Court Cases North Dakota v. US Corps of Engineers U.S. v. Rapanos
No decisions Argued this term Far-reaching impacts
North Dakota v. US Corps of Engineers
N.D. designated a reservoir as a fishery and set Clean Water Act standards under CWA Section 303
Corps wanted to release water from the reservoir to manage “navigable waters”
Release would lower the water levels would adversely impact the fishery
State filed action to prevent the release
N.D. v. US Corps of Engineers
Corps said that they did not have meet the CWA standard and they claimed sovereign immunity. Despite the fact there were other options available to the
Corps to manage downstream navigation
Broad discretion to control navigable waters overrides States environmental laws
This case is set to argued this spring and the results will have a significant impact on enforcing CWA standards against the US Corps.
US v. Rapanos
Rapanos asked the state to inspect his property to see if he needed a permit prior to filling the property for a shopping center
The state said it was probably a wetland and he should hire a consultant
The consultant confirmed his belief that the parcel was a “wetland”
Rapanos disagreed and proceeded with the project
US v. Rapanos
Criminal and civil charges were brought against Rapanos
Criminal Charges Prison Time? (See Judge’s thoughts on this)
Ultimately, after several appeals and delays Rapanos was found criminally liable
US v. Rapanos
Issue: Extent of “navigable water” Are non-navigable waters not physically
adjacent to a traditional navigable water subject to regulation?
US Supreme Court has attempted to clarify this issue twice in the past
US v. Rapanos
Riverside Bayview 1985 To protect pollution “at its
source” the CWA was to be read broadly
Wetlands adjacent to lakes, rivers, streams may function as integral parts of the whole
Adjacent wetland can be subject to regulation
SWANNC 2002 Limited “broad”
holding in Riverside Must have “significant
nexus” between wetlands and navigable water
Rapanos
Majority Including 4th Cir (NC) No direct abutment
requirement Hydrological
connection is enough
Minority 5th Cir. Requires that non-
navigable water directly abut the navigable water to be subject to CWA
Rapanos
Another Supreme Court interpretation of the extent to which the federal CWA has jurisdiction
Note: NC has an isolated wetland program that was developed in response to the SCANNC decision of 2001.
Beach Access Case
Fabrikant et. al., v. Currituck County 1998 case just ended Property owners were claiming title to the area
between the wet sand and the dunes Keep the public off the beach Court dismissed this claim
This presentation has not been reviewed by and does not represent the official position of the NC DOJ. The summaries and commentary
expressed herein are solely those of the author.