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U.S. Supreme Court rules that federally regulated dams need to obtain a Section 401 discharge license.

S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION ET AL.

No. 04–1527. Argued February 21, 2006—Decided May 15, 2006

The issue in this case was whether operating a dam to produce hydroelectricity “may result in any discharge intothe navigable waters” of the United States. If so, then a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. In this case t needed to obtain a recertification from FERC.

In 1999, he operator of a hydroelectric dam sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for whathave come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.

The Maine agency issued certifications that required the dam operator, Warren, to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventuallylicensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification.

Warren argued that the definition of “discharge” should be read narrowly and similarly to the definition applied to NPDES cases (§ 402). The Supreme Court disagreed, holding that the triggering statutory term in §402 is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant tothe water. §1362(12).

The Court held that a dam does raise a potential for a discharge, and state approval is needed.

“Daily” in Total Daily Maximum Loads means “Daily” Circuit Court Rules

The Court of Appeals for the District of Columbia ruled that the word “daily” in the “Total Maximum Dailiy Load” definition of the Clean Water Act means “every day.” A lower court had ruled that the word was ambiguious and that the use by the EPA of seasonal and annual TMDLs was reasonable. This ruling will eliminate the ability of municipal sewage treatment facilities to avoid violations if heavy storms overpower their facilities. Friends of the Earth, Inc. v. EPA No. 05-5015 (D.C. Cir. April 25, 2006).

Ethanol Facility to pay $171,000 penalty

ILLINOIS ETHANOL FACILITY WILL SIGNIFICANTLY REDUCE EMISSIONS, PAY CIVIL PENALTY

(extracted from the U.S. Dept. of Justice website)

WASHINGTON, D.C. – MGP Ingredients of Illinois, Inc. (MGP)—an ethanol producing company—has reached a settlement to resolve claims that it violated the Clean Air Act (CAA), which will result in a reduction of over 1,700 tons of air pollutants a year at its ethanol production plant in Pekin, Illinois, the Department of Justice, the U.S. Environmental Protection Agency (EPA), and the State of Illinois announced today. With today’s settlement, approximately 83 percent of the ethanol production capacity nationwide will be under consent decrees requiring new pollution controls.

In lawsuits filed today with the proposed settlement, the United States and the State of Illinois allege that MGP violated the Clean Air Act and federal and state rules by failing to obtain the appropriate permit before a major modification project at its Pekin facility and failed to install pollution controls that would have been required under the permit. The settlement requires MGP to install air pollution control equipment that will reduce emissions of VOC’s (volatile organic compounds) by 95 percent and CO (carbon monoxide) by 90 percent, and will also reduce emissions of several other pollutants to below significance levels. The estimated cost of the controls will be between $1 million-$2 million. In addition, MGP will pay a civil penalty $171,800—half to the United States and the other half to the State of Illinois.

To achieve a 95 percent reduction in VOC emissions, MGP will replace its current feed dryers with a new type of dryer, called a Swiss-Combi dryer that incorporates a thermal oxidizer. The thermal oxidizer is a demonstrated control technology for VOC's and will also reduce PM and CO emissions from the feed dryers. In addition, the plant will be held to stringent limits applicable to these pollutants. MGP must demonstrate compliance after installation of the controls and meet the required emission limits over the next three years.

In addition, MGP is required to propose an appropriate monitoring program as part of the federally enforceable permits required under the terms of the settlement. Such monitoring shall include parametric, periodic and continuous monitoring as determined appropriate by the Illinois Environmental Protection Agency (IEPA), subject to the approval by the EPA of all monitoring provisions.

Today’s consent decree builds on past success with other members of the grain industry, including: the September 1, 2005 settlement with Cargill, Inc.; recent settlements with AGP Corn Processing, Inc. in Nebraska, Golden Triangle in Missouri, U.S. Energy in Kansas, Ace Ethanol in Wisconsin; the 2003 settlement with Archer Daniels Midland; and the 2002 settlements with 12 Minnesota ethanol dry mills. Illinois, through the Illinois Environmental Protection Agency (IEPA), joined with the Justice Department and the EPA in the settlement negotiations to resolve the company’s alleged violations and to bring the facility into compliance.

The consent decree was lodged in federal district court in  Illinois and is subject to a 30-day comment period and final approval by the court.