General Statements About Future Expansion Do Not Trigger NEPA “Cumulative Impact” Analysis Requirement For CWA Section 404 Permit

 In a ruling that stands to benefit project proponents, the Ninth Circuit Court of Appeals, in Jones v. National Marine Fisheries Service,  Case No. 11-35954 (9th Cir., Dec. 20, 2013), found that the Army Corps of Engineers was not required to consider the cumulative future impacts of a mining project based on the mining company’s general statements about wanting to widen the scope of its mining activities in the future.  Judge Milan Smith authored the unanimous decision, wherein the panel affirmed the district court’s summary judgment in favor of the Army Corps of Engineers in an action challenging the Corps’ issuance of a Section 404 permit under the Clean Water Act for a project to mine mineral sands near Coos Bay, Oregon.

The plaintiffs argued that the mining company’s general statements that it intended to expand its mining operations along a 50-mile stretch of the Oregon coast, as well as the Corps’ consideration of three alternative sites analyzed in the Environmental Assessment as possible future projects, required the Corps to analyze the cumulative impacts of the permitted mining project under NEPA’s implementing regulations. 

The Court disagreed, concluding that the mining company’s stated desires, which included a statement that it intended to mine along the Oregon coast “from Cape Arago to Port Orford,” did not give specific information as to the number, scope or location of any future projects. 

The Court also found that the three alternative sites analyzed in the EA faced significant hurdles to development.  Relying on its prior decisions in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005), Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir. 2006), and Northern Plains Resource Council, Inc. v. Surface Transportation Board, 668 F.3d 1067 (9th Cir. 2011), the Court held that the mining company’s intended future activities were speculative and not reasonably foreseeable, and therefore, cumulative impact analysis under NEPA was not required.

The Court also found that the Corps adequately examined the risks associated with potential hexavalent chromium generation from the proposed mining project and conducted an adequate “alternatives analysis” prior to issuing the Section 404 permit.

-- Samir Abdelnour

For more information, please contact Samir Abdelnour at sja@bcltlaw.com, or (415) 228-5443.

EPA Calls for New “Completion Strategies” at Contaminated Groundwater Sites

In October 2013, the U.S. Environmental Protection Agency issued its draft “Groundwater Remedy Completion Strategy – Moving Forward with Completion in Mind,” which would establish a recommended strategy for an adaptive management-style approach to managing contaminated groundwater sites.  The strategy calls for rigorous data assessment of the performance of groundwater cleanup actions to achieve remedial action objectives (RAOs), and clarifies that RAOs and cleanup goals should be reevaluated if impediments prevent achieving those objectives. 

Buried in this regulatory jargon is one significant impact of the Completion Strategy – this document confirms EPA’s recognition that some groundwater sites present problems so intractable that RAOs and cleanup levels are not likely to be achieved in any reasonable timeframe. 

Although EPA clarifies that the Completion Strategy relies on–but does not alter–existing law and guidance, the document recommends that a remedy completion strategy be completed for all sites with groundwater remedies.  A completion strategy is “a recommended site-specific course of action(s) and decision making process(es) to achieve groundwater RAOs and associated cleanup levels using an updated conceptual site model, performance metrics and data derived from site-specific remedy evaluations.” 

The Completion Strategy lays out an adaptive management-style approach to evaluating remedy performance that proceeds through the following steps:

• Understand site conditions, including timeframe estimated to achieve cleanup;
• Design site-specific remedy evaluations, including endogenous and exogenous factors affecting remedy achievement;
• Develop performance metrics–such as remedy operation metrics, progress metrics, and attainment metrics–and collect monitoring data;
• Conduct remedy evaluations, including whether and when the remedy will achieve RAOs and cleanup levels; and
• Make management decisions that feed these data points back into remedy design, potentially through an Explanation of Significant Differences (ESD) or a Record of Decision (ROD) Amendment.

The Completion Strategy’s data-centric approach reflects a current vogue in performance-based systems in environmental regulation.  By relying on augmented data feedback, the use of completion strategies may lead to more honest and sober reflection on whether remedial action objectives can be achieved for sites with complex groundwater contamination.  As a result, Superfund sites with intractable groundwater contamination problems may begin to find EPA to be more receptive to reevaluating RAOs based on intractable obstacles to remedy completion.

The comment period closed on December 20, 2013, and a final draft is expected in early 2014.  The draft Completion Strategy, supporting fact sheet, letter to “interested parties,” and a frequently asked questions document are all available here. 

--Dave Metres

For additional information, Dave Metres can be reached at dmm@bcltlaw.com or (415) 228-5488.