Presentation on theme: "John C. Evans Assistant Attorney General NCDOJ"— Presentation transcript:
1 John C. Evans Assistant Attorney General NCDOJ DENR Case UpdateJohn C. EvansAssistant Attorney GeneralNCDOJ
2 Air Quality United States v. Duke Energy 411 F.3d 539 (4th Cir. 2005) Changes made to coal-fired utility boilersLink to nuclear…The issue was whether those changes subjected the boilers to New Source ReviewState-of-the-art air pollution controlsBACT or LAERPredict Impacts from the source
3 Air Quality NSR Applicability Requires an “emissions increase” Regulation had historically measured the increase in “annual” emissionsNC Federal Middle Dist. Court reads the regulations to require an initial hourly increaseRegulationsEarly Policy
4 Air Quality 4th Cir. (includes NC) Upheld the NC Middle Dist. Court DecisionRational was differentClean Air Act definition of “modification” was the same for NSR as for NSPS programAppeal to US Supreme Court by environmental groups US did not appeal.
5 Air QualityTake HomeHourly 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.
7 NSR Applicability Rule Actual Emissions Increase Using ProjectionsPlantwide Applicability LimitClean Unit ExemptionsPollution Control Project Exemptions
8 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
9 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
10 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 NSRExempt if the change meets 3 conditionsReplacing component (not the whole thing)Less than 20% of the replacement costDoes not change the basic design
11 Equipment Replacement Rule DC Cir. Court stayed the ruleOral Arguments heard on 8 February 06Not in effect in NCStill using the multi-factor test to determine routine maintenance.No current plans to adopt yet
12 M&W Clearing614 S.E.2d 568 (2005)Open burning --- however the size and scope was unusualNine large piles less than 1000 ft from buildingNotice of ViolationCivil Penalty Assessment of $36,000What about the $10,000 per day?
13 M&W Clearing State prevailed at OAH State prevailed in Superior Ct State prevailed in NC Court of AppealsBUT – the decision was 2:1Appeal to NC Supreme Court
14 M&W Clearing Issues Factual Question Procedural Issue Nine Piles One Violation?Nine Violations?Procedural IssueNotice of Violation stated one violationPast Practice provided that scattered piles was one violation
15 M&W Clearing Take Home Notice of Violation must be carefully drafted Multiple violations – continuing violationsRe-issue the NOV if necessary to correct clarified issuesProcedures (written)Past ActionPolicy Memos – DAQ has an “enforcement tree”Follow them, Update ThemNote in your assessment if it is not covered
16 Public Records Why Do You Care? Communication Enforcement Cases AppealedAttorney asks you to prepare a document – a statement – a reportCommunicationWrittenOral
17 Attorney Privilege McCormick (2004) Work Product Held that there was not an attorney work product privilege for city attorneysWork ProductThoughts and impressions of attorneyWork prepared by the agency at the direction of the attorney
18 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 litigationLessonsIdentify covered documentsNotify Attorney if threatened litigation
19 Attorney Privilege Attorney Client Communications Different than work productProtected …. Not totallyCommunications From AttorneyCommunications To Attorney?Oral Communications
20 Inspections Getting Into a Site While Staying Out of Trouble Issues: DENR Enforcement Training, June 2005Issues:WarrantConsentPlain View
21 Luxury Wheels Colorado case – Not NC but instructive Facts Chrome plating companyCompany discharged to city sewerPermitsAllowed to “enter the premises”Permit included on on-property sampling box
22 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.
23 Luxury Wheels4th Amendment - unreasonable search and seizure if there is an expectation of privacyWastewater 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
24 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 conditionCompany says they were forced to accept the conditionCourt – “Close Call”Company had choice of installing more expensive monitoring equipment.
25 Luxury Wheels Closely Regulated Another exemption to the warrant requirementGas Stations in WyomingVehicle Dismantlers in New YorkFishing in North CarolinaWhat about environmental regulation?
26 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.
27 Luxury Wheels Open Fields Another exception to the warrant requirement … howeverDoes not apply to removing objects such as samplesParticularly in this case were the waste water was not visible.
28 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 specificConsent is the best - if you ask and don’t get consent DO NOT ENTERLost evidencePersonal Liability (Trespass, Constitutional Claims)
29 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 boardsSEPS are not voluntary paymentsFeds not bounds by this requirement so sometimes it may be advantageous to work with the Feds on enforcement.
30 Water Resources Two Supreme Court Cases No decisions Argued this term North Dakota v. US Corps of EngineersU.S. v. RapanosNo decisionsArgued this termFar-reaching impacts
31 North Dakota v. US Corps of Engineers N.D. designated a reservoir as a fishery and set Clean Water Act standards under CWA Section 303Corps wanted to release water from the reservoir to manage “navigable waters”Release would lower the water levels would adversely impact the fisheryState filed action to prevent the release
32 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 navigationBroad discretion to control navigable waters overrides States environmental lawsThis case is set to argued this spring and the results will have a significant impact on enforcing CWA standards against the US Corps.
33 US v. RapanosRapanos asked the state to inspect his property to see if he needed a permit prior to filling the property for a shopping centerThe state said it was probably a wetland and he should hire a consultantThe consultant confirmed his belief that the parcel was a “wetland”Rapanos disagreed and proceeded with the project
34 US v. Rapanos Criminal and civil charges were brought against Rapanos Criminal ChargesPrison Time? (See Judge’s thoughts on this)Ultimately, after several appeals and delays Rapanos was found criminally liable
35 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
36 US v. Rapanos Riverside Bayview SWANNC 1985 2002 To protect pollution “at its source” the CWA was to be read broadlyWetlands adjacent to lakes, rivers, streams may function as integral parts of the wholeAdjacent wetland can be subject to regulationSWANNC2002Limited “broad” holding in RiversideMust have “significant nexus” between wetlands and navigable water
37 Rapanos Majority Including 4th Cir (NC) No direct abutment requirement Hydrological connection is enoughMinority5th Cir.Requires that non-navigable water directly abut the navigable water to be subject to CWA
38 RapanosAnother Supreme Court interpretation of the extent to which the federal CWA has jurisdictionNote: NC has an isolated wetland program that was developed in response to the SCANNC decision of 2001.
39 Beach Access Case Fabrikant et. al., v. Currituck County 1998 case just endedProperty owners were claiming title to the area between the wet sand and the dunesKeep the public off the beachCourt dismissed this claim
40 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.
41 Assistant Attorney General John C. EvansAssistant Attorney GeneralNCDOJ(919)