Environment & Natural Resources News

Law Offices of Kevin J. Brown

The Solid Waste Agency of Northern Cook County (SWANCC), a consortium of 23 suburban Chicago municipalities sought to develop a disposal site for nonhazardous waste. SWANCC purchased a 533 acre parcel of land, a former sand and gravel mining operation abandoned in the 1960's, from Chicago Gravel Company. The site contained some permanent and seasonal ponds which evolved from excavation trenches.

SWANCC applied for various permits from Cook County and the State. SWANCC also contacted the Army Corps of Engineers to determine if a permit was required under Section 404(a) of the Clean Water Act, which grants the Corps the authority to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites".

In the preamble to the 1986 rule, the Corps extended its interpretation of Section 404(a) to include: intrastate waters "which are or would be used as a habitat by birds protected by Migratory Bird Treaties; or which are or would be used as habitat by other migratory birds which cross state lines; or which are would be used as habitat for endangered species." This interpretation has since been known as the "Migratory Bird Rule".

Although the Corps initially concluded it had no jurisdiction at the site, it later became aware that a number of species of migratory birds were observed at the site and ultimately claimed jurisdiction over the site under the Migratory Bird Rule. In its November 1997 Permit Evaluation and Decision Document, it determined the seasonal ponds located at the site qualified as waters of the United States.

While SWANCC received necessary local and state approval, the Corps refused to issue a Section 404(a) permit. SWANCC filed suit against the Corps challenging the merits of the Corps' denial of the permit and jurisdiction over the site. The District Court granted summary judgment to the Corps on the jurisdictional issue. SWANCC appealed to the Seventh Circuit arguing the Corps had exceeded its statutory authority in interpreting the Clean Water Act to cover non-navigable, isolated, intrastate waters based upon the presence of migratory birds and that Congress lacked the power under the Commerce Clause to grant such regulatory jurisdiction.

The Supreme Court previously visited the issue of Corps jurisdiction under Section 404(a) in U.S. v. Riverside Bayview Homes. In that action, the Court held the Corps had jurisdiction over wetlands which abutted a navigable waterway. In SWNCC, the Court states "it was the significant nexus between the wetlands and 'navigable waters' that informed our reading of the CWA" in Riverside. The Court further states "[I]n order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this." Although the Court ultimately held that, as applied to the SWANCC site, the Corps exceeded its authority granted under Section 404(a) of the Clean Water Act, Justices Stevens, Souter, Ginsburg and Breyer wrote a dissenting opinion.

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MSHA Diesel Particulate Matter Rules Published

Diesel particulate matter, or DPM, consists of tiny particles present in diesel engine exhaust that can readily penetrate into the deepest recesses of the lungs. Despite ventilation, the confined underground mine work environment may contribute to significant concentrations of particles produced by equipment used in the mine. Underground miners are exposed to higher concentrations of DPM than any other occupational group.

The final rule, applicable only to underground areas of underground metal and nonmetal mines, establishes a concentration limit for DPM, and require mine operators to use engineering and work practice controls to reduce SPM to that limit. Underground metal and nonmetal mine operators would also be required to implement certain "best practice" work controls similar to those already required of underground coal mine operators under MSHA's 1996 diesel equipment rule. These operators would also be required to train miners about the hazards of DPM exposure. Although the rule is applicable only to underground mines, in publishing the final rule, MSHA stated it will "continue to evaluate the hazards of diesel particulate exposure at surface mines and will take any necessary action, including regulatory action if warranted, to help the mining community minimize any hazards".

Since underground conditions vary between coal mines and metal and nonmetal mines, the regulations take different approaches to reduce DPM exposure to the same level. The final rule to protect underground metal and nonmetal miners establishes an "interim" DPM concentration limit of 400 micrograms of total carbon per cubic meter of air and, after five years, that level must be reduced to 160.

Metal and nonmetal mines have up to 18 months to reach compliance with the interim concentration limit in their underground operations. These operators have the option of using engineering controls and best practices to reduce DPM to the proper limit. The following deadlines are set forth in the rules:

• March 20, 2001: operators must comply with the requirement that new engines added to a mine's inventory be either MSHA approved or meet the listed EPA standards.
• March 20, 2001: operators must comply with the listed best practice requirements and the requirement to provide basic hazard training to miners who are exposed underground to DPM.
• July 19, 2002: operators must comply with the interim DOM concentration limit of 400 micrograms of total carbon per cubic meter of air.
• January 19, 2006: all mines must comply with a final DPM concentration limit.

MSHA is offering compliance assistance and a series of informational workshops throughout the country. A compliance guide and tool-box also will be available on MSHA's web site at www.msha.gov.

MSHA first proposed regulations regarding diesel emissions in October 1998 for metal and nonmetal mines. Public hearings were held in the following May for the metal and nonmetal rule. Public comments were accepted on the coal rule for 15 months and on the metal and nonmetal rule for nine months.

The new diesel regulations will affect 145 underground coal mines employing nearly 15,000 miners and 196 underground metal and nonmetal mines employing nearly 19,000 miners.

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Pennsylvania Environmental Hearing Board Hears Appeal of Inspection Reports

The case involved an individual who resided and operated a business on a property located in Franklin Township. In 1983, he began to excavate a portion of the property in anticipation of construction of a building to house equipment. The building was never constructed, however, in 1983 the owner constructed a house on the site. In 1997, the owner constructed a building. Excavation apparently occurred continuously from 1983 throughout 1998. While the owner didn't sell the material, over 1000 loads of excavated material was removed and used by a local development and by a local Township. As early as June 1997, DEP began inspecting the site, preparing numerous inspection reports and related compliance orders, citing violations under the Noncoal Act and Clean Streams Law. At issue before the board were 4 of the inspection reports and 3 related compliance orders. The Appellant claimed the excavation fell under the non-commercial use or construction exemption to the Noncoal Act.

In its argument, DEP maintained that inspection reports are not "actions" as defined under the Pennsylvania Code, and therefore the EHB had no jurisdiction to hear appeals on those reports. The EHB held that, while it has previously held that inspection reports were not appealable actions in specific cases, it never held that inspection reports could not be appealed. The Board held that whether or not an inspection report was appealable turned on the substance and language of the report, and not merely its classification as an inspection report. The Board ruled one of those reports was only descriptive in nature. However, the remainder of the inspection reports contained mandates or commands, and were not simply advisory, and the Board ruled it had jurisdiction to hear an appeal of the reports. Although the EHB determined it has jurisdiction to hear the appeal it eventually ruled against the Appellant.
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Mr. Brown arrives from Azerbaijan where he managed the American Bar Association Central & East European Law Initiative office in Baku. Previously, he held positions at Miller & Chevalier, and Weil, Gotshal & Manages in Washington, D.C.