EPA

Water Contamination and Fracking in Wyoming

Adrea Korthase

Tonight’s CBS Evening News included a story on fracking in Pavillion, Wyoming that can be found here.

The NPR story on the subject can be found here. An excerpt:

People in Pavillion, located on the Wind River Indian Reservation, contacted the EPA three years ago, complaining that their water smelled and tasted bad.

The agency started sampling drinking water wells in 2009 and found low levels of methane and other hydrocarbons in most of those wells. Although the levels did not exceed drinking water standards in most cases, the agency recommended that people get other sources of water for drinking and cooking, Encana, the company which drilled the wells, started providing water. The company says it provides drinking water to 21 households at a cost of about $1,500 per month.

The agency was concerned that higher concentrations of some of the chemicals might be lurking elsewhere in the aquifer.

So EPA researchers drilled two wells and found lots of chemicals, which could be tied to drilling. For example, they found levels of benzene, which is known to cause cancer and other health effects, far higher than safe drinking water standards. The presence of other chemicals — like synthetic glycols and alcohols — persuaded them that the contamination was likely coming from fracking.

Finally, a recent post about fracking can be found here.

Michigan AG Leads Amicus Brief Against EPA Mercury Controls

Matthew L.M. Fletcher

Here is the brief.

The case is American Nurses Assn. v. Jackson.

It is a sad day for everyone living in the Great Lakes watershed that so many states can get behind a lawsuit that will guarantee higher mercury levels in the water and not suffer political backlash. We in Michigan are deeply shamed by the actions of our Attorney General.

“Trust and Trash”: New Scholarship on Dumping on Tribal Lands

Matthew L.M. Fletcher

Elizabeth B. Forsyth has published “Trust and Trash: Why EPA Needs a Flexible Approach to Illegal Dumping on Tribal Lands” in the Harvard Law and Policy Review.

Here is the intro:

Imagine a Native American nation situated on less than 1,000 acres in a rural area. Seventy percent of the hundred tribal members living on the land are unemployed; their primary income sources are government assistance and small amounts of revenue from tribally-owned businesses. The waste hauler for the nearby county refuses to service tribal land. With self-haul distances of eighty miles to the nearest transfer station, and many members without easy access to a car, the tribal members have little option but to dump their trash in the woods.

Recognizing the threat to health and the environment that the accumulating trash piles are causing, the tribal government approaches the United States Environmental Protection Agency (EPA) for funds to clean up the trash and to start a tribally-run trash collection program. EPA grants the tribe $100,000 to clean up the five dump sites and $100,000 for a “pilot” collection and recycling program.

A year later the dump sites are cleaned up and the collection program is used by all members of the tribe. But as the grant period draws to a close, a problem arises: although the collection program brings in modest amounts of revenue from the tribal members themselves, the program is not self-sustaining. Rising fuel costs, long haul distances, and lack of economies of scale mean that without raising collection rates beyond what members would be able to pay, the program is doomed. The EPA grant project officer apologizes to the tribe. Although EPA can continue to give the tribe grants for dump cleanup, beyond pilot projects EPA cannot fund ongoing waste collection for tribes. The tribe is on its own.

This article will argue that EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection,[2] is misguided.[3]This article will show that, at least for some tribes, the result of paying for dump cleanup rather than trash collection is less desirable from both an environmental and an economic perspective. Part I of this article will examine the unique legal position of small tribes and why funding ongoing collection may be the most environmentally sustainable solution. Part II will evaluate the costs to EPA of cleaning up dump sites on tribal land against the costs of strategically funding ongoing solid waste collection for small tribes. Part III will evaluate the potential reasons behind EPA’s reluctance to pay for ongoing collection. Finally, Part IV will offer an alternative funding model.

Catherine O’Neill on Pollution in the Portland Harbor and Treaty Rights

Matthew L.M. Fletcher

From CPRBlog, h/t to Seattle Law’s Cases and Controversies Blog:

[An excerpt]

EPA is to be commended for declining to let the polluters call the shots at the Portland Harbor site. Their response to the LWG risk assessment sets an appropriate tone. And it gives reason for hope that the agency will continue to take seriously its responsibilities to oversee this and other cleanups.

There is, however, a long way to go in the process and many issues yet to be addressed. For example, there is the point – not directly addressed in EPA’s comments – that it is not only contemporary tribal consumption rates that are relevant to cleanup at the Portland Harbor site but also historical tribal consumption rates and practices. The fishing tribes in the Columbia River Basin and elsewhere have rights – secured, in many instances, by treaty – to take and eat fish as they did prior to the arrival of European settlers to this region. These rights have not always been honored by the United States and its citizens, however. As a result, contemporary tribal fish consumption rates can be said to be artificially “suppressed” from historical rates – due to denial of access to fishing places; inundation of tribal fishing places; tribal members being arrested and their gear confiscated; and depletion and contamination of the fishery resource, often at the hands of non-Indians. Cleanup at places such as Portland Harbor, where tribes and their rights are affected, ought not be gauged against what tribal members today consume, but by what tribal members would consume, were the fishery resource not depleted and contaminated, and were they able to exercise fully their rights to take and eat fish.

The United States today has an obligation to ensure that tribes’ fishing rights are honored. Among other things, the federal government has the duty to see that these rights are not undermined by environmental degradation. A right to take and eat fish is obviously made hollow if the fish are permitted to be too contaminated for human consumption. As it seeks now to clean up that contamination, the United States, through its EPA, needs to keep its treaty promises in mind. This means that EPA needs to redouble its efforts to work with the tribes, on a government-to-government basis, to determine the relevant measures of risk and goals for remediation at the Portland Harbor site. Ultimately, this means that EPA needs to assure restoration that will support tribes’ rights to fish as they once did – and as they seek to do in the future.

Stupak Says EPA Decided Not to Require Federal Permit at Kennecott Mine

Matthew L.M. Fletcher

From ABS News.

EPA Visits Eagle Rock

Matthew L.M. Fletcher

From ICT, via Pechanga:

BIG BAY, Mich. – As the top government official who oversees Great Lakes water quality stood on the edge of sacred Eagle Rock, overlooking a pristine expanse of the Yellow Dog Plains, she gained a better understanding about why the state-owned land is sacred to Michigan’s Ojibwa.

“I very much understand what their concerns are – and that is one of the things we are considering as we moved forward on this,” said Tinka Hyde, Water Division director for Environmental Protection Region 5. “We realize that Eagle Rock is of cultural and religious importance to the tribe.”

Hyde was one of three EPA regional bosses from Chicago and the agency’s tribal liaison for Michigan who were given a tour of the area May 13 by officials from the Keweenaw Bay Indian Community during a two-day visit to Michigan’s Upper Peninsula.

Members of numerous tribes including Ojibwa, Cherokee and Lakota had been camping at the base of Eagle Rock since April 23 in hopes of preventing Kennecott Eagle Minerals from building a nickel and copper sulfide mine – named the Eagle Project. At the company’s request, state and local police officers raided the encampment May 27 arresting two campers.

Under federal treaties, Ojibwa have rights to hunt, fish and gather on the state of Michigan owned land. The state leased the land to Kennecott with the understanding that all permits must be approved.

Hyde said any ruling the EPA makes about the withdrawal of state and federal permit applications by Kennecott subsidiaries will be based solely on environmental protection laws, primarily the 1974 Safe Drinking Water Act.

Continue reading →

Supreme Court Rulings Forcing Shutdown of EPA Enforcement

Matthew L.M. Fletcher

NYTs article here.

An excerpt:

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according toEnvironmental Protection Agencyregulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

EPA Asserts that Proposed Greenhouse Gases Regulations Do Not Require Tribal Consultation

Matthew L.M. Fletcher1 Comment

Amazingly, the EPA in its recent notice that it will begin regulating greenhouse gases made the assertion that it will not consult with Indian tribes under Executive Order 13175: Consultation and Coordination with Indian Tribal Governments. Here is the notice — EPA-HQ-OAR-2009-0171-00012. The relevant language is on page 18909, or page 25 of the pdf.

Guess no one at EPA is aware that a bunch of Indian tribes (most notably the Crow, Navajo, and Southern Ute) hold the keys to very large greenhouse-gas producing natural resource reserves, or that Alaskan Native communities (like Kivalina) are falling into the ocean as a result of greenhouse gases. Baffling.

Thanks to Jim for this one.

Miccosukee Everglades Challenge to EPA and Florida

Matthew L.M. Fletcher1 Comment

This case, a continuation of the challenge first brought in 1988, and which once reached the Supreme Court, involves the Miccosukee Tribe’s attempts to protect the Everglades. This case involves an attempt by the State of Florida to alter the state’s water quality standards and avoid federal review, and EPA compliance with that alteration. Here is the opinion: miccosukee-v-us-dct-opinion

An excerpt:

Notwithstanding its complexity, the matters at issue may be reduced to two essential questions. The first question is whether the Environmental Protection Agency acted arbitrarily and capriciously under the Federal Clean Water Act, 33 U.S.C. § 1251 et. seq. (“CWA”), and the Federal Administrative Procedures Act, 5 U.S.C. § 701, et. seq. (“APA”), by concluding that the 2003 amendments to the Florida’s Everglades Forever Act did not change water quality standards. The second question is whether the Environmental Protection Agency further erred in its subsequent review of the State of Florida’s Phosphorus Rule by finding compliance with the Federal Clean Water Act.
I conclude against the Environmental Protection Agency on both questions (with some limited exceptions pertinent to the Phosphorus Rule). Contrary to the Environmental Protection Agency’s written Determinations, it is my view that the Florida Legislature, in 2003, by adopting the State’s draft Long-Term Plan, as proposed by the South Florida Water Management District’s Governing Board, changed water quality standards under the Federal Clean Water Act, and violated its fundamental commitment and promise to protect the Everglades, by extending the December 31, 2006 compliance deadline for meeting the phosphorus criterion for at least ten more years. Turning a “blind eye,” the United States Environmental Protection Agency (“EPA”) concluded that there was no change in water quality standards. The EPA is patently wrong and acted arbitrarily and capriciously in reaching its conclusion. It did so by simply reading the words of specific sections of the Amended Everglades Forever Act (“Amended EFA”), rather than by connecting the dots to analyze its true effect. Its review is nothing more than a repeated imprimatur, i.e., acceptance without independent analysis, based on the State of Florida’s representation that the EFA Amendments did not change water quality standards.

Miccosukee Complaint re: EPA’s Water Transfer Exemption Rule

Matthew L.M. Fletcher

Here is the new complaint in Miccosukee Tribe v. EPA.

miccosukee-complaint