Appeals court rules on contested Clean Water Act issue

On January 25, 2019, the United States Court of Appeals for the District of Columbia Circuit issued a unanimous decision in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Circuit), ruling that California and Oregon waived their authority under Section 401 of the Clean Water Act in the relicensing of a hydroelectric project along the Klamath River.  This important decision resolves a hotly-contested issue under the Clean Water Act and will have implications for all projects that require Section 401 water quality certifications.


 This Alert was written by Patrick Nugent, an associate in the Saul Ewing Arnstein Lehr law firm’s Energy Practice
Under Section 401 of the Clean Water Act, any applicant for a federal permit to construct or operate a facility that may result in a discharge to navigable waters must provide the federal permitting agency with “a certification from the State in which the discharge originates . . . that any such discharge will comply with” applicable state water quality standards.  33 U.S.C. § 1341(a)(1).  However, the requirements of Section 401 are waived “[i]f the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request.”  Id.
As the Court explained in its opinion, the “temporal element imposed by the statute” for determining waiver “is ‘within a reasonable period of time.'”  As a result, “while a full year is the absolute maximum, it does not preclude a finding of waiver prior to the passage of a full year.” The Court noted that the Environmental Protection Agency – the agency charged with administering the Clean Water Act – generally finds waiver after only six months (citing 40 C.F.R. § 121.16).
In this case, the relicensing applicant had entered into an agreement with the states in which the applicant “agreed to defer the one-year statutory limit for Section 401 approval by annually withdrawing-and-resubmitting the water quality certification requests that serve as a pre-requisite to [the Federal Energy Regulatory Commission’s] overarching review.”  The parties operated under this arrangement for several years, whereby “before each calendar year had passed, [the applicant] sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same . . . in the same one-page letter . . . for more than a decade” (emphasis in original).
Thus, the Court was faced with answering the following question: “whether a state waives its Section 401 authority when, pursuant to an agreement between the state and applicant, an applicant repeatedly withdraws-and-resubmits its request for water quality certification over a period of time greater than one year.”
The Court answered this question in the affirmative, concluding that “the withdrawal-and-resubmission of water quality certification requests does not trigger new statutory periods of review.”  The Court determined that the withdrawal-and-resubmittal arrangement “does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project.”  “[I]f allowed, the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.”  The Court explained that it has “repeatedly recognized that the waiver provision was created to prevent a State from indefinitely delaying a federal licensing proceeding” (quotations omitted).  As a result, the Court determined that the withdrawal-and-resubmission scheme directly undermines Congress’ intention in “Section 401 to curb a state’s ‘dalliance or unreasonable delay'” (emphasis in original).
Because the applicant resubmitted the same application each year under its agreement with the states, the Court did not need to decide whether the submission of a “new” request would restart the waiver period or “how different a request must be to constitute a ‘new request.'”  Those questions remain to be decided another day.  But when an applicant and a state agree to withdraw and resubmit the same application, the Hoopa Valley Tribe decision finds that “such an arrangement does not exploit a statutory loophole,” the waiver period does not reset, and the state remains obligated to act “within a reasonable period of time” of the original request for certification.

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NJ landfill to take PFAS soil from military base in PA

Some New Jersey environmental groups want the planned dumping of material from former Willow Grove naval station to be halted

Landfill at Rosenhayn

A landfill near Vineland, which has agreed to accept 4,500 tons of PFAS-contaminated soil from former Naval Air Station at Willow Grove, Pa.
Jon Hurdle reports
for NJ Spotlight:
A New Jersey landfill has agreed to accept a consignment of soil contaminated with toxic PFAS chemicals that are increasingly seen as a threat to public health and are being more tightly regulated by New Jersey and other states. Some environmentalists have expressed alarm at the decision and have called for the dumping to be halted.
The soil is from the former Naval Air Station at Willow Grove, Pennsylvania, where high levels of PFAS chemicals have contaminated public and private water sources, and where the Navy is removing the most highly polluted soil.
The material will be taken to a landfill at Rosenhayn, near Vineland in South Jersey. The site is operated by the Cumberland County Improvement Authority, which has agreed to take 4,500 tons of soil from the base and has determined that it meets the requirements of non-hazardous material even though it contains high levels of some PFAS chemicals.
The authority agreed in mid-December to take the soil, but it has not yet been delivered, its president, Jerry Velazquez, said on Friday. He said it’s not unusual to have a delay in delivery after a contract is signed but said in this case, it may be due to the now-ended federal government shutdown.
Velazquez said the landfill is double-lined, which guarantees that the chemicals in the soil will not leak into the nearby groundwater, as they have at Willow Grove and another military base nearby, contaminating the water and forcing utilities to install technologies that cut the presence of PFAS chemicals to levels that are designed to protect public health.

Planned dumping is ‘shameful’

Jeff Tittel, director of the New Jersey Sierra Club, called the dumping “shameful” and dismissed the authority’s assertion that its lined landfill won’t leak. “All institutional controls fail at some point,” he said. “It’s called geology, it’s called physics.”
The man-made chemicals, formerly used in consumer products like nonstick cookware and flame-retardant fabrics, have been linked to some cancers, low birth weights, elevated cholesterol and other illnesses, and have become the focus of growing concern by regulators and public-health advocates as more becomes known about their dangers.
New Jersey last year became the first state to adopt a tough new standard for one of the chemicals, PFNA, and is considering similarly strict limits for two related chemicals. The chemicals have been found in more places and in higher concentrations in New Jersey than in many other states.


So the planned shipment of soil from within the 95th percentile of contamination at the Willow Grove base to a landfill in the state that has become a national leader in regulating the chemicals was greeted with consternation by some environmentalists.“It is unbelievable that the military would think to rid themselves of the pollution they caused by dumping it on their neighboring state and that New Jersey would allow this contamination to be accepted, especially considering the known PFAS contamination with which New Jersey is already burdened,” said Tracy Carluccio, deputy director of the Delaware Riverkeeper Network, and a longtime campaigner for tighter limits on PFAS.

Making PFAS contamination worse?

Carluccio called on New Jersey and Pennsylvania to halt the dumping, and to adopt regulations that would allow PFAS chemicals to be treated as hazardous chemicals.“What the Willow Grove Base is doing is not cleanup, it is sleight-of-hand manipulation that actually makes our PFAS contamination worse,” she said.At Willow Grove, the Navy plans to remove soil containing at least 1,027 parts per trillion (ppt) for the chemical PFOS, or more than 14 times higher than the 70 ppt health limit recommended by the U.S. Environmental Protection Agency for drinking water. PFOS, which had the highest concentrations of any PFAS chemical at the site, is one of the chemicals that’s being considered for strict new regulation by the New Jersey Department of Environmental Protection.Like many other military bases around the country, Willow Grove is a major source of PFAS contamination because it used the chemicals in firefighting foam for decadesRead the full story

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Bill Gates is selling Washington on a new nuclear energy


Power plants at Three Mile Island in Pennsylvania. Nuclear power has united both unpopular industry executives and a growing number of people — including some prominent Democrats — alarmed about climate change. (Michael S. Williamson/The Washington Post)
Steven Mufson reports for The Washington Post;

Bill Gates thinks he has a key part of the answer for combating climate change: a return to nuclear power. The Microsoft co-founder is making the rounds on Capitol Hill to persuade Congress to spend billions of dollars over the next decade for pilot projects to test new designs for nuclear power reactors.

Gates, who founded TerraPower in 2006, is telling lawmakers that he personally would invest $1 billion and raise $1 billion more in private capital to go along with federal funds for a pilot of his company’s never-before-used technology, according to congressional staffers.

“Nuclear is ideal for dealing with climate change, because it is the only carbon-free, scalable energy source that’s available 24 hours a day,” Gates said in his year-end public letter. “The problems with today’s reactors, such as the risk of accidents, can be solved through innovation.”

Gates’s latest push comes at an important turn in climate politics. Nuclear power has united both unpopular industry executives and a growing number of people — including some prominent Democrats — alarmed about climate change.

[‘Carbon removal is now a thing’: Radical fixes get a boost at climate talks]

But many nuclear experts say that Gates’s company is pursuing a flawed technology and that any new nuclear design is likely to come at a prohibitive economic cost and take decades to perfect, market and construct in any significant numbers.

Bill Gates, who founded TerraPower in 2006, is telling lawmakers that he personally would invest $1 billion and raise $1 billion more in private capital to go along with federal funds for a pilot of his company’s never-before-used technology, according to congressional staffers. (Gian Ehrenzeller/EPA-EFE/Shutterstock)

Lawmakers are listening to him. Through the Energy Department, Congress approved $221 million to help companies develop advanced reactors and smaller modular reactors in fiscal 2019, above the budget request. But Gates and TerraPower, which received a $40 million Energy Department research grant in 2016, are looking for more.

With some Democrats reconsidering opposition to nuclear energy dating back to the Three Mile Island accident 40 years ago, Gates met with lawmakers from both parties, including Sens. Lamar Alexander (R-Tenn.) and Dianne Feinstein (D-Calif.), both senior members of the Senate Appropriations Committee. Last month, he had dinner with Sen. Lisa Murkowski (R-Alaska) and three other senators.

Edwin Lyman, a nuclear expert at the Union of Concerned Scientists, said TerraPower is one of many companies that is raising the public’s hopes for advanced nuclear reactor designs even though they’re still on the drawing boards and will remain unable to combat climate change for many years.

“We think the vendors of advanced nuclear power designs are saying they can commercially deploy them in a few years and all over the world,” Lyman said. “We think that is counterproductive because it is misleading the public on how fast and effective these could be.”

But Gates speaks often about the need for innovation on the climate front. He has invested heavily in other nascent technologies — much of it related to energy storage — in search of the sort of breakthrough he hopes will slow global warming.

[CEOs buy into need to stop climate change: ‘We need to future-proof ourselves’]

Gates, who declined interview requests, won’t say how much he has invested in TerraPower, but the Bellevue, Wash.-based company has about 150 employees.

Many nuclear power experts say that the technology Gates is promoting — called a “traveling wave reactor” — does not work as advertised, at least not yet. “These designs . . . require advances in fuel and materials technology to meet performance objectives,” a Massachusetts Institute of Technology report said last year.

TerraPower has changed key elements of its design and has still not resolved critical problems, experts say.

The company appeared to hint at alternatives when asked about the problems.

“Our team in Bellevue continues our design work on the [traveling wave reactor] while we consider alternative commercial paths,” Marcia Burkey, chief financial officer at TerraPower, said in an email.

Jonah Goldman, of Gates Ventures, stressed that Gates was not advocating for TerraPower alone. Gates thinks the United States has “the best minds, the best lab systems and entrepreneurs willing to take risk,” Goldman said. “But what we don’t have is a commitment on Congress’ part.”

In his letter, Gates praised TerraPower’s “traveling wave” technology. He said it “is safe, prevents proliferation, and produces very little waste” — important selling points in Congress, which has not settled on the location of a site for long-term waste storage.

Gates has compared the technology to a candle. He said that uranium-235, which is burned in conventional light water reactors, would be used to ignite the rest of the candle, burning up depleted uranium-238 that is treated as waste.

And instead of water, it would use liquid sodium to cool the plant, which TerraPower said would be more efficient.

Gates has said the reactor could be placed in a vessel underground and left there for 60 years without refueling. That would reduce chances for human error and defuse concerns about long-term spent fuel storage or the theft of nuclear material during refueling or fuel reprocessing, the company said.

But critics say TerraPower has been stumbling over a handful of obstacles.

First, TerraPower has discovered that the traveling wave didn’t travel so well and that it would not evenly burn the depleted uranium in the “candle.” Second, and partly as a result, it needed to change the design to reshuffle the fuel rods — and do that robotically while keeping the reactor running. Third, it has struggled to find a metal strong enough to protect the fuel rods from a bombardment of neutrons more intense than those commonly used in reactors — and for a much longer period of time.

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NJBPU decision could cost utility customers millions

Under a new regulation, 75 percent of savings from consolidated tax adjustments will go to utilities rather than consumers, reversing the split of an earlier rule

Tom Johnson reports for NJ Spotlight:
New Jersey’s utilities stand to gain at customers’ expense under a regulatory change approved last week by the state Board of Public Utilities in adopting an arcane policy in how it treats tax losses.
The new rule, adopted after a previous board order was tossed out by a state appeals court, deals with how utilities use the savings they achieve when they file consolidated tax returns with parent companies and affiliates.
The result could end up costing consumers significant benefits in future rate cases, since the rule often has been used as a bargaining chip to offset increases sought by their utilities, according to the Division of Rate Counsel.
“This change will result in tens, if not hundreds of millions, of dollars in additional rate increases annually to ratepayers compared to the January draft rule,’’ said Division of Rate Counsel Stefanie Brand, in a letter to the BPU last year.

Only 25 percent for consumers

Under the new policy, utilities, instead of customers, will receive 75 percent of the savings from so-called consolidated tax adjustments, with customers sharing 25 percent. In the initial draft rule proposed in January by the board, customers would have gotten three-quarters of savings, with the company receiving the rest.
The share was reversed in a subsequent version of the rule, without the knowledge of the state Division of Rate Counsel and New Jersey Large Energy Users Coalition, which backed the allocation in the initial draft rule.
The new rule closely mirrors requirements detailed in a four-year-old board order on the issue. That order was blocked by the appeals court, which ruled the BPU should have gone through a rulemaking procedure.
New Jersey is the only state with a consolidated tax adjustment, a provision long opposed by utilities that have sought its elimination. “Let’s see how it works,’’ said BPU president Joseph Fiordaliso. “Let’s give it a shot.’’

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No income tax disclosure, no presidential votes in NJ

A bill scheduled for consideration in a New Jersey Senate committee would prohibit the appearance on the state election ballot of any presidential or vice-presidential candidate who fails to disclose their federal income tax returns.

 Three Senate Democrats–Loretta Weinberg of Bergen County and Shirley Turner and Linda Greenstein, both of Mercer County, are sponsors of S-119 that also would bar New Jersey members of the Electoral College from casting votes for Presidential or Vice-Presidential candidates who fail to make public their tax returns.

 The bill is scheduled to be heard by the Senate State Government, Wagering, Tourism, and Historic Preservation Committee at 10:30 a.m. on January 31, 2019. The committee will meet in  Room 4, 1st Floor, State House Annex in Trenton.

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Ag and Enviro bills advancing today in the NJ Legislature


 The following bills saw action today in the NJ Legislature: 

 A810 – Authorizes award of reasonable costs and attorney fees to farmers prevailing in certain farm management disputes.01/24/2019 Reported out of committee with committee amendments, 2nd reading in Assembly 

A2417 – Creates “Coastal Climate Change Commission.”
01/24/2019 Reported out of committee with committee amendments, 2nd reading in Assembly 

A3764 – Permits stocking of triploid grass carp in waterbodies under certain circumstances.
01/24/2019 Reported out of committee, 2nd reading in Assembly 

A4821 – Establishes new timeframes for implementation of certain requirements in “Global Warming Response Act”; requires DEP to adopt a strategy to reduce short-lived climate pollutants.
01/24/2019 Reported out of committee, referred to Assembly Appropriations Committee 

S1700 – Concerns environmental permits in burdened communities.
01/24/2019 Reported out of committee with committee amendments, 2nd reading in Senate 01/24/2019 Referred to Senate Budget and Appropriations Committee 

S2167 – Dedicates $500,000 annually in revenues from vessel registration and renewal fees to NJ Greenwood Lake Fund.
01/24/2019 Reported out of committee, referred to Assembly Appropriations Committee 

S2920 – Establishes funding allocations for constitutionally dedicated CBT revenues for State’s open space, farmland, and historic preservation programs for the Fiscal Year 2020 and thereafter.
01/24/2019 Reported out of committee with committee amendments, 2nd reading in Senate 01/24/2019 Referred to Senate Budget and Appropriations Committee 

S3221 – Directs Department of Agriculture to establish Jersey Fresh sales pilot program; appropriates $500,000.
01/24/2019 Reported out of committee, 2nd reading in Senate 01/24/2019 Referred to Senate Budget and Appropriations Committee

 **NOTE** Bills amended today may not yet be updated 

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