Environmental and Safety Law Update

By Philip L. Comella, Jeryl L. Olson, and William R. Schubert

Over a year ago the Department of the Interior released a draft of a proposed rule governing hydraulic fracturing (fracking) on public lands.  We blogged about the details of that version of the proposal upon its unofficial release.

After withdrawing the original draft based on concerns of overregulation and potentially intrusive disclosure requirements, the Department of the Interior has drawn up a new plan.  

Key Updates:

Key updates to this new version of the proposed rule include, in the Department’s words:

“(1) The use of an expanded set of cement evaluation tools to help ensure that usable water zones have been isolated and protected from contamination; and

(2) More detailed guidance on how trade secrets claims will be handled, modeled on the procedures promulgated by the State of Colorado.”

30-Day Public Comment Period:

The proposed rule was published in the Federal Register (78 Fed. Reg. 31636) on May 24, 2013, with a 30-day public comment period.

By Philip L. Comella

The U.S. Environmental Protection Agency has just updated and re-released its guidance document Waste Analysis at Facilities that Generate, Treat, Store, and Dispose of Hazardous Waste.

The Agency is seeking comments on the revised guidance, which are due April 30, 2013.

By Meagan Newman and Craig B. Simonsen

The U.S. Environmental Protection Agency has announced public meetings to “obtain public input from stakeholders” on a national electronic manifest (E-Manifest) database system intended to capture information on shipments of hazardous wastes.

Specifically, the purpose of the meetings is to solicit comments from the states, industry, communities, nongovernmental organizations, and other stakeholders on what expectations and technical requirements EPA should consider as the Agency begins the planning stages for the E-Manifest system. “EPA envisions that E-Manifest will facilitate the electronic transmittal of manifests throughout the hazardous waste shipping process, including enabling better transparency by sharing data with the public at appropriate stages.”

Each meeting is expected to be one and one-half days long. The dates and locations for each meeting are:

• February 25–26, 2013: Arlington, Virginia, EPA Headquarters, One Potomac Yard, 2777 S. Crystal Drive, Arlington, VA 22202.
• March 14–15, 2013: Chicago, Illinois, EPA Region 5, Ralph Metcalfe Federal Building, 77 West Jackson Blvd., Chicago, IL 60604–3590.
• March 21–22, 2013: Denver, Colorado, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202–1129.

Potentially interested parties may include information technology staff and personnel supporting hazardous waste generators, hazardous waste treatment, storage and disposal facilities, hazardous waste transporters, nongovernmental organizations and trade associations dealing with hazardous waste transportation issues.

EPA is requiring that all persons wishing to attend the meetings must register in advance of each meeting. Register online at: http://www.epa.gov/osw/hazard/transportation/manifest/e-man-meetings.htm .

By Ilana R. Morady and Eric E. Boyd

Earlier this month in Geneva, the U.N. Subcommittee of Experts on the Transport of Danger Goods (Subcommittee) convened to consider additions and revisions to the U.N. Model Regulations (Regulations). The Subcommittee approved two noteworthy proposals.

By way of background, the Regulations cover all aspects of the transportation of dangerous goods (known as “hazardous materials” or “hazmat” in the United States) by various modes. They include a comprehensive classification system for substances that pose a significant hazard in transportation. The hazards addressed include explosiveness, flammability, toxicity (oral, dermal and inhalation), corrosivity to human tissue and metal, reactivity, radioactivity, infectious substance hazards, and environmental hazards. The Regulations are not legally binding on individual countries, but they have gained significant international acceptance in large part because international uniformity in dangerous goods transportation eases compliance burdens and increases safety. The Subcommittee convenes twice a year to consider various proposals for updating or modifying the Regulations.

At this month’s Geneva convention, the Subcommittee approved the following two proposals:

1. Eased requirements for the transport of small quantities of hazardous substances. The U.S. backed a proposal for exempting certain substances classified as environmentally hazardous from labeling, packaging, and documentation provisions of the Regulations when shipped in quantities of five liters or five kilograms or less. The Subcommittee approved the proposal, which was largely supported by industry groups. The eased requirements, however, only apply to substances classified as environmentally hazardous and not meeting the criteria of any other class or division of dangerous goods. Some members of the Subcommittee pushed to widen the proposal to cover small quantities of dangerous goods across the board, but that effort ultimately failed.
2. Exemption of damaged and waste lithium batteries from regulatory requirements. In recent years, the U.S.-based Portable Rechargeable Battery Association (PRBA) and the International Association for Advanced Rechargeable Batteries (RECHARGE) have been seeking to exempt waste lithium batteries from certain regulatory requirements including U.N. testing and battery-design requirements that presented numerous compliance difficulties. The Subcommittee approved the exemption and also adopted new requirements that damaged and waste lithium batteries be shipped in accordance with specific packing instructions. Specifically, the batteries must be individually packed in inner packaging with cushioning and absorbent materials.

Both of these new provisions must now be considered by the respective modal organizations (e.g., the International Maritime Organization) to determine if and how they will be incorporated into the applicable dangerous goods regulations such as the International Maritime Dangerous Goods Code.

By Ilana R. Morady and Eric E. Boyd

On October 1, 2012, the Federal Trade Commission (FTC) published final changes to its Guides for the Use of Environmental Marketing Claims, commonly known as the “Green Guides.” The FTC first issued the Green Guides in 1992 to help marketers ensure that claims they make are true and substantiated. The guidance they provide includes: 1) general principles that apply to all environmental marketing claims; 2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and 3) how marketers can qualify their claims to avoid deceiving consumers. The agency revised the Green Guides in 1996 and 1998, and in 2010 it proposed the current revisions.

The updated Green Guides address emerging environmental claims, namely renewable material claims, renewable energy claims, and carbon-offset claims.  They also clarify and supplement existing guidance on general environmental benefit claims, ozone-safe, compostable, degradable, recyclable, recycled content, source reduction, refillable, and free-of/non-toxic claims, and the use of certifications and seals of approval. Although some public comments requested that the agency add a section to the revised Green Guides discussing organic and natural claims, the FTC declined because the Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) also regulate the use of these terms.

The Green Guides are published at 16 CFR Part 260. As agency guidance, they do not have the force and effect of law and are not independently enforceable. The FTC can, however, take action under Section 5 of FTC Act, which prohibits unfair or deceptive practices, if a marketer makes an environmental claim inconsistent with the Green Guides. Seyfarth Shaw’s Green Marketing Compliance Team regularly advises clients on strategies for marketing the environmental and health benefits of their products while avoiding legal pitfalls. For further information on how the Green Marketing Compliance Team can help your company, please contact us.

By Philip L. Comella

Ending, for the time being, a fiercely contested rulemaking in which even the Chicago Tribune's editorial board weighed in, the Illinois Pollution Control Board on August 23, 2012 issued its Final Rule changing the standards for Clean Construction or Demolition Debris (CCDD) Fill Operations. The heart of the controversy in this rulemaking was whether the Board should require these fill operators to conduct groundwater monitoring to satisfy amendments the General Assembly made to the Environmental Protection Act in 2010. 

As a perceptual matter, it did not look good to some observers that a fill operator would be able to dispose of debris and clean soil without conducting groundwater monitoring.  This is what caught the attention of the Chicago Tribune, which said, "We don't believe self-policing within the waste industry is a wise strategy when drinking water is at stake."  But fears, politics, and business interests wound up giving way to the evidence.  The Board "found no evidence .  .  . to demonstrate that CCDD or uncontaminated soil fill sites were a source of drinking water contamination."  It must be remembered that under the Act "uncontaminated soil" and "clean construction debris" are not solid wastes and therefore deserve separate management standards.  Furthermore, even though it did not require groundwater monitoring, the Board imposed strict certification requirements on the "front-end" to ensure that fill operators accept only clean soils meeting the same general standards as required to obtain a "no further remediation" letter from the Illinois Environmental Protection Agency.  (The point of a "no futher remediation" letter is that once a site is found to meet the requisite standards, no further action is required, including of course groundwater monitoring. )

But the groundwater monitoring issue is not completely dead. Before the issuance of the final notice, the Joint Committee on Administrative Rules issued a recommendation that the Board give further consideration to whether groundwater monitoring should be required for these facilities. Finessing this recommendation, the Board opened another docket in the rulemaking to further evaluate the monitoring issue, indicating it will issue an order in that docket "at a later date."

Stay tuned for further developments.

By Eric E. Boyd and Craig B. Simonsen

George P. Nassos, of George P. Nassos & Associates, recently provided our Group with a presentation on “The Urgency of Adopting Sustainability”. It is an interesting analysis on the rationale for and the cost-benefit value in adopting sustainability within large corporate businesses and organizations. Sustainable strategies are listed and reviewed.

Interestingly, studies have found that while ninety-three percent of industry leaders say that they believe that sustainability is critical to the company’s success, very few organizations actually have a chief sustainability officer to ensure the implementation of sustainability goals and purposes.

Nassos indicates that implementing sustainability throughout the organization can also have positive returns on the corporate bottom line. Research has shown that certain sustainability metrics can reduce the company’s cost of capital (discount rate) and thus increase its shareholder value (capitalization). Companies are urged to consider performing sustainability audits to see where they may best succeed in implementing their own sustainability measures and be sure of investing strategically.

By Craig B. Simonsen

We had previously blogged about the U.S. Environmental Protection Agency’s  (EPA’s) Greenhouse Gas (GHG) “tailoring rules” for Prevention of Significant Deterioration (PSD) and Title V permitting, and about its GHG "Endangerment Finding". Yesterday the D.C. Circuit Court of Appeals has ruled concerning both of these rulemakings. Coalition for Responsible Regulation, Et al. v. EPA, --- F.3d ----, 2012 WL 2381955 (D.C. Cir., June 26, 2012).

In that case, the Petitioners were various states and industry groups, who argued that the rules were based on improper constructions of the Clean Air Act (CAA) and were otherwise arbitrary and capricious. The Court concluded that the Endangerment Finding was neither arbitrary nor capricious; that the EPA’s interpretation of the governing CAA provisions was unambiguously correct; and that no petitioner had standing to challenge the tailoring rules. All of the petitions for review of the tailoring rules were dismissed for lack of jurisdiction, and the remainder of the petitions were denied. “We decline Industry Petitioners’ invitation to rule on the merits of cases which are properly before different panels.”

The Court concluded by noting that “Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases.” As the Court pointed out, the tailoring rules may have actually mitigated the Petitioners’ alleged injuries. Without the tailoring rule, an even larger number of industry and state-owned sources would potentially have been subject to PSD and Title V permitting, and state authorities might have correspondingly been overwhelmed with millions of additional permit applications.

Among other impacts, this ruling is expected to limit the construction of new coal plants as energy providers move toward cleaner fuels, such as natural gas.

By Jeryl L. Olson, Eric E. Boyd, and Craig B. Simonsen

In a not unexpected final rule issued today by the U.S. Environmental Protection Agency (EPA) it has listed the "Chicago-Naperville, IL-IN-WI Nonattainment Area" as marginal nonattainment. 77 Fed. Reg. 34221 (June 11, 2012). The rulemaking promulgates the initial air quality designations for twelve counties in Illinois, Indiana, and Wisconsin for the 2008 primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone, in accordance with the requirements of Clean Air Act (CAA) section 107(d). State areas designated as nonattainment are subject to planning and emission reduction requirements in the CAA.

By Jeryl L. Olson and Eric E. Boyd

In anticipation of the impending hurricane season, the U.S. Environmental Protection Agency (EPA) recently issued a Hazardous Weather Release Prevention and Reporting Alert. The purpose of the Alert, according to the EPA Press Release, is to “increase awareness among facility operators about their obligation to operate facilities safely and report chemical releases in a timely manner.” Although the Alert provides no new information or requirements, it is a good reminder of existing legal requirements and the resources available to help facilities to weather severe storms.

The Alert begins by describing things facility operators should do to prevent releases during shutdown or emergency operations due to storm or flooding events. The Alert describes the general duty provisions of the Clean Air Act and related air regulations that require facility owners and operators to prevent accidental releases of certain listed substances, hazardous substances, extremely hazardous substances, and hazardous air pollutants. The Alert also discusses what facilities should do if a release occurs due to a storm or preparation for a storm, and describes the emergency release reporting provisions of Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended, and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The Alert recommends:

“EPA encourages all industry sectors to review their operational events during shutdown operations related to previous hazardous weather events, and make appropriate administrative/procedural, operational/process equipment and hardware/software safety improvements.”

Finally, the Alert links to resources to help facilities prepare for, ride out, and recover from a storm event.

By Philip L. Comella

Rulemaking procedures underway before the Illinois Pollution Control Board’s (Board) in the First Notice of proposed amendments to Clean Construction or Demolition Debris (CCDD) Fill Operations (35 Ill.Adm.Code 1100) show that battle lines have been drawn over how CCDD will be regulated in the State of Illinois.  One of the key battles taking shape now is whether the Board will implement the legislative directive to protect groundwater at CCDD and uncontaminated soil fill operations by imposing groundwater monitoring requirements on the “back-end” (receiving facility) or by increasing the stringency of certification requirements on the “front-end” (source of material).

CCDD occupies a unique niche in the state’s regulatory scheme.  CCDD is not a “waste” if, among other things, it is used as fill in a “quarry, mine or other excavation.”  415 ILCS 5/3.160.  The Board’s rulemaking, following the General Assembly’s directive in P.A. 96-1416, also establishes a new category of facility call an “uncontaminated soil fill operation” and defines “uncontaminated soil.”  415 ILCS 22.51a.  

The problem, as it seems with many environmental laws, is how one defines “clean” and “uncontaminated.” The Illinois Environmental Protection Act’s (Act) definition of “CCDD” is “uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil generated from construction or demolition activities.”  In the 2010 amendments to the Act , the Illinois General Assembly defined “uncontaminated soil” by reference to the State’s Tiered Approach to Corrective Action Objectives (TACO), though the General Assembly did not mandate the use of TACO.

The General Assembly expressed an intent to protect groundwater at both CCDD operations and uncontaminated soil fill operations, but used different language to implement this directive for the two types of facilities.  CCDD operations, it said, must include standards and procedures necessary to protect groundwater, which may include a number of measures, including groundwater monitoring.  415 ILCS 22.51(f)(1).  “Uncontaminated soil fill operations” also must protect groundwater but on this occasion the General Assembly listed “testing and certification of soil” and “requirements for recordkeeping,” but not “groundwater monitoring.”  Id. 22.51a(d)(1)

The rules proposed by the Illinois Environmental Protection Agency (Agency) required groundwater monitoring for all CCDD and uncontaminated soil fill operations in operation one year after the effective date of the final rules.  Facilities that have entered post-closure within that one year period would be exempt.  (Proposed Rule, 35 Ill. Adm. Code 1100, Subpart G.)

The Agency said it believed the groundwater monitoring requirements were necessary “because the facilities are not required to have a protective liner to control contaminant migration and because they are consolidating a large volume of off-site materials into one area with that material often placed directly into the groundwater flow.”   

The Agency balanced the groundwater monitoring requirement on the back-end with relatively flexible certification requirements on the front-end.  The owner/operator of the receiving facility must document that for all soil, it will either obtain a certification from the owner of the source site that the source site is not potentially impacted property, and is thus presumed to be uncontaminated, or will obtain a certification from a licensed PE or PG that the source soil is uncontaminated.  Id. 1100.205(a).  The forms relied upon by the Agency to implement these two certification requirements did not mandate testing, provided there is a basis for the owner’s or PE/PG’s certification.

In the Board’s First Notice Order and Opinion, issued on February 2, 2012, it inverted the Agency’s proposal by doing away with the groundwater monitoring requirement entirely and imposing certification requirements for uncontaminated soil on the front-end based on the ASTM standards.  Under the Board’s First Notice, source site owners or operators must use the ASTM E 1528-06 Transaction Screen to establish that the source site is not a “potentially impacted property” and hence, any removed soil is presumed to be uncontaminated.  If the source site owner is unable to make this certification or if the property is “potentially impacted,” then the fill site operator must obtain a certification from a professional engineer or geologist that the source site soil is uncontaminated based on an evaluation conducted in accordance with ASTM 1527-05, Phase I Environmental Site Assessment Process.  This certification must include analytical testing to show that the soil does not contain contaminants in excess of the maximum allowable concentrations, based on the lowest applicable Tier 1 standards under TACO.

The Board found no factual evidence that that CCDD operations were actually contaminating groundwater and no legal directive that it necessarily had to include groundwater monitoring among the measures to ensure the protection of groundwater.

The Board heard testimony on its First Notice on March 13-14th and issued an order setting April 18, 2012 as the deadline for comments, and April 27, 2012 as the deadline for responses to those comments.  Under the Act, the Board must issue final rules by July 29, 2012.

Thus, as matters now stand, the regulated community is sliding somewhere between mandatory groundwater monitoring requirements, which may drive many CCDD facilities out of business, and the mandatory use of ASTM procedures, which appear ill-suited for the majority of construction and excavation projects that generate CCDD and uncontaminated soil.

Stay tuned for further developments, as this rulemaking continues to unfold.

By Jeryl L. Olson

This is a supplement to our June 12, 2011 post on the Seyfarth Environmental and Safety Law Update advising that U.S. Environmental Protection Agency (EPA) has determined that certain information submitted under the Greenhouse Gas Reporting Rules will not be treated as confidential business information. On February 22, 2012 EPA published a proposed rule with respect to greenhouse gas emissions reporting from electronics manufacturers which clarifies that information on a company’s processes, production rates, and raw material use would be classified as and treated as confidential business information, while the amount of greenhouse gas emissions, and calculation methods will be considered public information.  The proposed rule with respect to electronic manufacturers does not affect the approximate 27 other industrial categories of greenhouse gas admissions.

By Eric E. Boyd and Ilana R. Morady

On February 21, 2012, the Obama Administration issued a Memorandum of Understanding to boost compliance with various mandates requiring federal agencies and contractors to purchase biobased products.  Biobased products are defined by the 2002 Farm Bill as “commercial or industrial products (other than food or feed) that are composed in whole, or in significant part, of biological products, renewable agricultural materials (including plant, animal, and marine materials), or forestry materials.”  The 2008 Farm Bill extended the definition of biobased products to include biobased intermediate ingredients or feedstocks.

Under the United States Department of Agriculture’s (USDA) BioPreferred program, the Department designates categories of biobased products and lists individual products available for preferred purchasing by federal agencies and their contractors.  The President’s memorandum calls for the USDA to increase the number of biobased categories and listed products by 50% within one year.  Currently the USDA has designated 64 categories of biobased products representing 9,000 individual products for preferred purchasing but fewer that half of these products are actually on the USDA’s list.

The biobased product industry employs 50,000 people. The President’s memorandum aims to expand jobs in this sector by directing the USDA to provide training and assistance to biobased companies in order to increase awareness of the BioPreferred program and the opportunities it presents. 

By Ilana R. Morady and Eric E. Boyd

The Federal Trade Commission (FTC) recently announced that it has extended the deadline for the public to submit comments on its new Appliance Labeling Rule.  The new regulations, which apply to residential furnaces, central air conditioners, and heat pumps, are mandated by the Energy Policy and Conservation Act (Act).  The Act directs the FTC to determine how energy efficiency information on labels should be communicated to consumers.  The new Rule currently requires EnergyGuide labels for heating and cooling products that disclose efficiency ratings and comparisons of the highest and lowest ratings for similar models.  The agency seeks public comments on how to further develop labeling so that product information is efficiently communicated to consumers, distributors, contractors, and installers.  The original deadline for comments was January 10, 2012; the new deadline is February 6, 2012.  Comments can be filed here.

The FTC also recently announced that it has extended the deadline for the public to submit comments on its Textile Rules.  The Textile Rules require that all textiles sold in the United States carry labels disclosing the generic names and percentages by weight of the fibers in the product, the manufacturer or marketer name, and the country where the product was processed or manufactured.  In recent years, the FTC has made "green" claims about textiles a priority.  In particular, the FTC has sued several companies for mislabeling products covered by the Rules as "bamboo" when in fact, the Agency argues, the product is rayon that is merely manufacturer using cellulose from bamboo. The comments are not being elicited in response to any significant changes; rather, the Agency is conducting a periodic review of the Textile Rules, as it does for all rules on a rotating basis.  Accordingly, the Agency requests comments on the overall costs, benefits, necessity, and impact of the Textile Rules.  The original deadline for comments was January 2, 2012; the new deadline is February 2, 2012.  Comments can be filed here.

By Jeryl L. Olson, Eric E. Boyd, and Craig B. Simonsen

In Portland Cement Association v. Environmental Protection Agency, No. 10-1358 (December 9, 2011), the U.S. Court of Appeals for the D.C. Circuit recently reviewed the adoption by the U.S. Environmental Protection Agency (EPA) of the National Emission Standards for Hazardous Air Pollutants (NESHAPS) From the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants,” promulgated at 75 Fed. Reg. 54970 (September 9, 2010). The Portland Cement Association (PCA) filed a petition for review of various aspects of the EPA’s final rule.

PCA had argued to the Court that the adoption of a continuous emissions monitoring system  (CEMS) rather than a sampling standard for particulate matter (PM) emissions was not a “logical outgrowth” of the proposed rule. The Court found that “this is not true. EPA sought comment on a CEMS requirement in its first proposal, and PCA even commented on it.” 74 Fed. Reg. 21136, 21157 (May 6, 2009). “Moreover, any individual hardship resulting from the CEMS requirement is mitigated by the fact that a kiln may employ ‘alternative monitoring’ if it demonstrates the ‘technical or economic infeasibility’ of installing CEMS.”

Concerning the New Source Performance Standards (NSPS) portion of the rule, the Court found that EPA failed to provide notice that it would require continuous monitoring of PM emissions from cement kilns. EPA proposed requiring kilns to demonstrate compliance with the PM standard by conducting periodic stack tests. The only mention of continuous monitoring in the proposed rule came when EPA proposed providing an “option” for plants to demonstrate compliance with the PM standard by installing a CEMS. 73 Fed. Reg. 34072, 34082 (June 16, 2008). In its final NSPS rule, however, EPA required plants to demonstrate compliance with the standard through continuous emissions monitoring. “The fact that EPA proposed providing kilns with a CEMS option hardly placed PCA on notice that kilns could be required to demonstrate NSPS compliance through continuous emissions monitoring.” However, “although EPA gave inadequate notice that it might adopt a CEMS requirement under NSPS, this error was harmless precisely because the proposed NESHAP rule put PCA on notice that EPA might require kilns to install CEMS systems.”

By Jeryl L. Olson

On December 1, 2011 the Illinois Pollution Control Board adopted new rules which will allow for the registration of small sources in lieu of obtaining a construction or operating permit for such small sources in Illinois.  The new regulations adopted at 35 Il Adm. Code Section 201.175 will become effective shortly, and the Illinois Environmental Protection Agency (IEPA) is working on forms and procedures for implementing the new program, referred to as Registration of Smaller Sources (ROSS).  The Rule provides that small sources subject to ROSS must by June 30, 2013 submit an initial registration and fee ($235) to IEPA, and thereafter, unless there is a change to its status under ROSS, the source must pay an annual ($235) registration fee again.

To qualify for ROSS, a source must meet the following criteria: (1) it must not need to obtain a Title V permit or NESHAP permit under Illinois law; (2) must not be required by U.S. EPA to have a permit; (3) must have actual emissions of less than 5 tons per year combined, of particulate matter, carbon monoxide, nitrogen oxide, sulfur dioxide, and volatile organic material; (4) the source must have actual emissions of less than 0.5 tons per year of HAPS; (5) the source must have actual emissions less than 0.05 tons per year of lead; (6) the facility must have actual emissions less than 0.05 tons per year of mercury; and (7) the source must not have an emission unit subject to the NESHAPS MACT standards, other than as categorized as an “area source.” 

In calculating its actual emissions of pollutants, a source is only required to consider emissions from units that are not entitled to the 35 Il Adm. Code Section 201.146 exemptions. The recordkeeping and recording requirements applicable to ROSS facilities, describe the means of calculating actual emissions of regulated pollutants.  ROSS requires that a source must notify IEPA in writing within 45 days of any change to the source which affects the ROSS status. Sources that are currently subject to the small source permit program in Illinois and which are in compliance with the terms and conditions of the permit and are entitled to ROSS status need only to notify the Agency at the time of its annual fee payment due date of its change in status to a ROSS source.

By Andrew H. Perellis

Superfund Sites with Dense Non-Aqueous Phase Liquids (DNAPLs) may require additional groundwater treatment under a recent guidance document issued by the U.S. Environmental Protection Agency (EPA) on September 19, 2011. The OSWER directive, Clarification of OSWER’s 1995 Technical Impracticability Waiver Policy, #5355.5-32, instructs Regions to discard the 1995 guidance document that had advised Regions to provide Technology Impracticability (TI) waivers to sites where a DNAPL was contributing to groundwater contamination. According to the newest guidance “much progress” has been made in treatment of DNAPLs so Regions should not automatically grant a TI waiver without making additional evaluation of in-situ treatment options. In addition, the guidance “reminds” the Regions that even where a TI waiver is granted, EPA’s expectations are to prevent further migration of the contaminated groundwater plume, and that the remedy to be implemented must still be protective of human health and the environment.

A DNAPL is derived from a liquid that is denser than water. A significant spill of these liquids, including chlorinated solvents (such as trichloroethylene, tetrachloroethene, and 1,1,1-trichloroethane) tends to sink through the groundwater and pool when it reaches an impermeable layer of clay or bedrock. The recent guidance can be expected to make it more difficult to justify a remedy that allows a DNAPL to remain in place untreated.

By Andrew H. Perellis and Craig B. Simonsen

The U.S. Department of Justice (DOJ) and The Ryland Group Inc. (Ryland Homes), have filed a proposed consent decree to resolve Clean Water Act violations. The complaint, filed simultaneously with the proposed consent decree in the U.S. District Court in Charlotte, N.C., alleged violations that were discovered through site inspections and from documentation submitted to the government by Ryland Homes.

As noted in the DOJ press release, the alleged violations included failure to obtain permits until after construction began, failing to obtain permits at all, and failing to comply with permit requirements at sites where Ryland Homes did obtain permits. The alleged permit violations included not developing complete stormwater pollution prevention plans, failure to conduct adequate inspections, and failure to install or implement adequate stormwater controls or practices.

Ryland Homes agreed to pay a civil penalty of $625,000 to settle the dispute. Ryland Homes will also invest in compliance programs to improve employee training and increase management oversight at all current and future construction sites. The company is also required to inspect its current and future construction sites routinely to minimize stormwater runoff from sites.  The Company will submit national compliance summary reports to the U.S. Environmental Protection Agency (EPA) based on quarterly oversight inspections.

By Mark A. Lies II and Elizabeth Leifel Ash

Under the Obama Administration, many federal agencies, including the Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA) have redoubled their efforts to enforce existing laws and regulations.  OSHA and EPA, in particular, have seen significant increases in their inspection and enforcement budgets, including the hiring of more inspectors and a call for more inspections.  Accordingly, it is more important than ever for companies regulated by these agencies to identify potential compliance gaps and take corrective action before the agency conducts an inspection.

Conducting a compliance audit is one way businesses can get ahead of the curve in terms of their environmental and workplace safety compliance.  Before such an audit is conducted, however, it is important for the company to take measures to protect the eventual audit report from disclosure to a government agency or private litigant pursuant to subpoena or discovery request.  This article outlines legal privileges potentially available for environmental and workplace safety audit reports and recommends actions companies can take to avail themselves of those privileges.

AVAILABLE LEGAL PRIVILEGES

A.        Attorney-Client Communications

Perhaps the best-known legal privilege that can apply to compliance audit reports is the protection for attorney-client communications.  In order to establish this privilege, three factors must apply:  1) there must be an attorney-client relationship; 2) the communication must be for the purpose of seeking or obtaining legal advice; and 3) there must be an expectation that the communication be kept confidential.  In some cases, the attorney-client privilege can extend to a document prepared by a third party where the client provides information to the third party retained by the attorney for the primary purpose of obtaining legal advice from the attorney.  See, e.g., U.S. v. Bornstein, 977 F.2d 112, 117 (4th Cir. 1992).

Recently, the Occupational Safety and Health Commission (Review Commission) held that a workplace safety audit report that was prepared by a third party retained by the attorney who needs the services of the third party to translate technical or complex information provided to the third party by the client in order to have effective legal consultation on the information between the client and the attorney and the third party prepares the documents for that purpose may be protected as an attorney-client communication.  In Sec’y of Labor v. Delek Refining Ltd., 23 O.S.H. Cas. (BNA) 1567 (O.S.H.R.C. July 11, 2011) (Delek), the Review Commission overturned the Administrative Law Judge’s decision that a draft process safety management compliance audit report prepared by a third-party consultant was not privileged.  In response to OSHA’s request for subpoena for the draft audit report, the employer argued that the draft report was an attorney-client communication and was, therefore, not subject to disclosure to OSHA.  The Judge rejected this argument, finding that the employer had undertaken the audit in order to comply with OSHA’s Process Safety Management Standard, which specifically requires such an audit, and therefore the report was not privileged.

The Review Commission remanded the case back to the Judge with instructions to evaluate the audit report in order to determine whether the attorney-client privilege applied.  Specifically, the Review Commission found that the employer had shown that the audit was not undertaken to comply with the Process Safety Management standard’s audit requirement but rather was prepared to assist the employer’s attorneys with technical issues associated with compliance with the Process Safety Management Standard.  The Review Commission held, therefore, that the audit report was potentially protected by the attorney-client privilege, and additional evaluation is necessary before determining whether the employer was required to turn over the report to OSHA.  The Judge’s decision after remand still is pending.

B.        Attorney Work Product

Under the Federal Rules of Civil Procedure, all documents and information that is reasonably calculated to lead to the discovery of admissible information are discoverable, which could include internal audits that may have uncovered potentially damning information. Rule 26(b)(3), however, implicitly recognizes that materials prepared by or at the direction of a party’s representative (i.e., legal counsel) in anticipation of litigation are generally protected from discovery.

This evidentiary privilege is sometimes referred to as the “attorney work product doctrine,” but the protection is not limited to those materials prepared directly by an attorney.  Rather, the privilege extends to materials prepared by any person at the direction of an attorney, as long as the materials are prepared “in anticipation of litigation.”

The Review Commission recognizes the work product privilege in contested OSHA proceedings.  See Sec. of Labor v. Bally’s Park Place Hotel & Casino, 15 O.S.H. Cas. (BNA) 1337 (Rev. Comm’n Nov. 7, 1991), aff’d Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252 (3rd Cir. 1993).  In Bally’s Park Place, the employer refused to give its employees’ union a report containing emissions testing results for a piece of machinery that caused employee complaints.  The employer argued that the company’s General Counsel requested the testing after receiving a letter from OSHA containing complaints about the machine.  The employer argued that it had anticipated litigation potentially arising out of OSHA’s complaint letter, and the report was developed to allow the attorney the ability to advise the employer on its potential liabilities.

OSHA issued Bally’s Park Place a willful citation under 29 C.F.R. § 1910.1020 for failing to release exposure records to the union.  The Review Commission vacated the citations, holding that the report qualified for protection from disclosure because it had been prepared in anticipation of litigation at the direction of the employer’s attorney.  On appeal, the Third Circuit agreed.

The Review Commission has also held that the work product protection can apply to investigative reports prepared after an incident such as an explosion or a fatal accident.  In Sec. of Labor v. Continental Oil Co., the Review Commission held that the employer was not required to give OSHA reports prepared by the company’s expert consultants hired by the company’s attorneys to investigate a refinery explosion.  9 O.S.H. Cas. (BNA) 1737 (Rev. Comm’n Apr. 27, 1981).  The Review Commission found that the employer’s attorneys hired a team of experts to investigate the cause of the explosion and to report their findings directly to the company’s attorneys.  In addition, the Review Commission held that the reports were prepared “in anticipation of litigation” even though no litigation had been initiated, recognizing that materials need not be prepared for any specific litigation, but only “with an eye toward litigation” to be protected from discovery.

C.        Environmental Audit Privilege

The EPA (as well as many States) has a policy, entitled “Incentives for Self-Policing:  Discovery, Disclosure, Correction, and Prevention of Violations” (Audit Policy), to encourage regulated entities to voluntarily conduct environmental compliance audits and to disclose incidents of non-compliance to the EPA (or the relevant State environmental authority).  One piece of the Audit Policy is the elimination of gravity-based penalties where the company meets certain criteria. (Notably, OSHA provides no incentive for employers to voluntarily self-disclose incidents of non-compliance.)  For example, where the non-compliance is discovered through a routine environmental audit or compliance management system, the company discloses the non-compliance within 21 calendar days after discovery, then EPA may eliminate the entire gravity-based penalty.  The Audit Policy also allows up to a 75% offset in gravity-based penalties for self-disclosure, even where the non-compliance was not discovered during a routine environmental audit or compliance management system, as long as the non-compliance is discovered independently of a government investigation or private litigation.  In addition, the EPA applies the Audit Policy to new owners who discover incidents of environmental non-compliance in recently acquired facilities.  Such non-compliance must generally be disclosed within 45 days following closing to qualify for the penalty offsets.

The second key feature of the Audit Policy is an evidentiary privilege for audit reports generated in connection with environmental compliance audits.  Under the Audit Policy, EPA will not request environmental compliance audit reports during a routine investigation.  Individual states, such as Illinois, Ohio, Michigan, Texas, and Colorado, have enacted statutes that expressly provide an evidentiary privilege for environmental audit reports.

RECOMMENDATIONS

The foregoing cases illustrate how critical it is for employers to have procedures in place to ensure that sensitive documents and materials (such as post-accident investigation reports and internal self-audits or analyses) are protected from disclosure to OSHA and/or EPA so the reports cannot become “smoking gun” documents containing potential admissions of liability to support issuance of citations, including willful citations and high-gravity civil penalties and negative visibility for the employer.

It is recommended that employers establish procedures to create and preserve evidentiary privileges as follows:

• Ensure that Company personnel at all locations are trained and required to contact in-house or outside counsel as soon as a serious accident or environmental release occurs at the worksite or when an OSHA or EPA inspector arrives at the location.  The attorney should be involved throughout the inspection, including participating in interviews of management personnel and opening/closing conferences.  If the attorney cannot participate in any part of the inspection, the attorney should designate a management representative to act on the attorney’s behalf by taking notes, photographs, or otherwise documenting the progress of the inspection.
• The attorney should be engaged to direct any post-incident or other audit or investigation, including any “root cause” investigation or report, as well as the decision to retain an independent expert consultant.  The attorney must be kept apprised of important developments by copying the attorney on email and other correspondence.
• Ensure that memoranda, emails, letters, or other communications that contain legal advice are not distributed beyond company representatives involved in critical decision-making who are considered to be in the employer’s “control group” by reason of their decision making authority, which may result in a waiver of a claim of attorney-client confidentiality.
• Involve the attorney to develop a strategy for promptly disclosing instances of environmental non-compliance to ensure that all applicable criteria for invoking the Audit Policy or applicable state audit privilege law are met.

By Philip L. Comella and Craig B. Simonsen

The U.S. Environmental Protection Agency (EPA or Agency) just released its Toxicological Review of Trichloroethylene (EPA/635/R-09/011F, September 28, 2011) (Toxicological Review). This publication represents the first time that EPA has classified trichloroethylene (TCE) (CASRN 79-01-6) as a human carcinogen regardless of the route of exposure. TCE had previously been classified as a "possible human carcinogen."

According to the Agency, the purpose of the Toxicological Review is to provide scientific support and rationale for the hazard and dose-response assessments given in its Integrated Risk Information System (IRIS) pertaining to chronic exposure to TCE. TCE is a volatile chemical widely used by industry as a chlorinated solvent; and unfortunately, it is also widely found at contaminated sites, including hundreds of Superfund facilities across the country.

The Toxicological Review concludes that based on the available human epidemiologic data and experimental and mechanistic studies, "TCE poses a potential human health hazard for noncancer toxicity to the central nervous system, kidney, liver, immune system, male reproductive system, and the developing fetus. The evidence is more limited for TCE toxicity to the respiratory tract and female reproductive system."

The chief impact of this new hazard classification will likely be on the developing vapor intrusion standards and on groundwater remediation projects.

By Jeryl L. Olson and Craig B. Simonsen

In United States v. DTE Energy Company, Docket No. 10-13101 (E.D. MI, Aug. 23, 2011), Judge Bernard Friedman recently found for the defendant, DTE Energy Company (DTE) in a New Source Review (NSR) permit dispute.  In the complaint, the United States alleged that DTE violated the Clean Air Act (CAA) and the State of Michigan’s approved State Implementation Plan (SIP).

The primary issue was whether DTE violated the CAA by renovating electric utility steam generating units (units) without first obtaining a NSR permit from the Michigan Department of Environmental Quality (MDEQ). The United States contended that a permit was required because the renovations constituted a "major modification" of the units. DTE contended that no permit was required because it abided by all statutory and regulatory obligations.

A major modification is defined as a physical change at a major stationary source or a change in the method of operation that results in a significant net emissions increase. The 2002 NSR rules, as adopted by the U.S. Environmental Protection Agency (EPA) in 2002, and which were incorporated into the Michigan SIP, regulate that a project is a major modification for a regulated pollutant if it causes both a significant emissions increase and a significant net emissions increase. 40 C.F.R. § 52.21(a)(2)(iv).

A project "is not a major modification if it does not cause a significant emissions increase." Under the 2002 NSR rules, if a source operator determines that its project does not constitute a major modification, it may commence its project without an NSR permit subject to certain post-project emissions monitoring requirements. 

In this case DTE mailed a pre-project Notice Letter to the MDEQ, informing the agency of the projects at issue. The Notice Letter predicted an annual post-project emissions increase, but asserted that the emissions increase was unrelated to the projects. According to the Court, the MDEQ did not question DTE’s notification.

DTE did not obtain a pre-construction permit.  It argued that it was not required to do so because the requirements were satisfied by projecting post-construction emissions, determining that those projections did not indicate a major modification, and then reporting the projections to the MDEQ in a notice letter. DTE argued "that so long as certain pre-project requirements are met, NSR is triggered only if the project in question causes an emissions increase, which then demonstrates that the project is per se a ‘major modification.’" "That determination, however, cannot be made until the completion of the first year for which such measurements are required."

The District Court agreed with DTE, and granted summary judgment.

By Jeryl L. Olson and Eric E. Boyd

On July 12, 2011, Illinois Governor Pat Quinn signed the House Bill 1297.  With one stroke of the pen, the legislation provides the mechanisms to streamline the Illinois permitting process and to provide the necessary funding for air permit programs. 

For Illinois businesses, the new expedited permit review provision may be the most significant portion of the new legislation.  The provision adds a new Section 39.14 to the Illinois Environmental Protection Act (“Act”).  415 ILCS 5/39.14 which allows any applicant for any permit under the Act to request the Agency to expedite the review of the permit application.  Following the request, the Agency must within a reasonable time indicate in writing whether or not it will perform an expedited review.  The period of  “expedited review” is to be mutually agreed upon by the Agency and the applicant.  The fee for an expedited review will be hefty:  four times the standard permit fee plus the standard permit fees.  If the Agency fails to complete an expedited review within the period of time agreed upon, the applicant will be entitled to a refund of the expedited permit fee on a pro-rated basis “as mutually agreed upon by the Agency and the applicant.”  The expedited permit review provisions do not apply to applications related to emergencies necessitating immediate action by the Agency. 

Another significant provision of the legislation is to establishes a registration system for smaller air sources.  The small sources that register for the program must pay an annual registration fee of $235.  The registration will exempt the source from the requirement to obtain an air pollution installation or operating permit.  The sources not eligible for the smaller source registration program include:

1. Clean Air Act Permit Program (CAAPP) or federally enforceable state operating permit (FESOP) sources;
2. Sources for which the U.S. EPA has determined that a permit is required;
3. Sources that emit five tons per year or more of combined particulate matter, carbon monoxide, nitrogen and oxides, sulfur dioxide, or volatile organic material;
4. Sources that emit .5 tons or more per year of any hazardous air pollutant;
5. Sources that emit .05 tons per year or more of lead or mercury; and
6. Sources that are subject to a 40 CFR Part 61 or Part 63 standard for hazardous air pollutants, including area resources. 

The Agency is required to propose rules to the Pollution Control Board regarding the implementation of the registration of the smaller source program.

The legislation also provides, for the first time, the availability of “general permits” and “permits by rule.”  New Section 39.10 of the Act provides that the Agency may issue general permits for construction, installation and operation of categories of facilities. 415 ILCS 5/39.10.  The general permit program requires, among other things, a submittal of a notice of intent to be covered by the general permit, and payment of applicable permitting fees.  The Agency is required, within six months of the effective date of the legislation, and after consultation with the regulated community, to identify the types of permits for which general permits would be appropriate, consistent with state and federal law. 

The new “permit by rule” provision is at Section 39.12. 415 ILCS 5/39.12.  The provision states that the Board may adopt rules providing for permits by rule.  Like general permits, permits by rule would require a permittee to submit a notice of intent to be subject to the permit by rule, and to pay applicable permitting fees.  A proposal for a permit by rule may be made by any person. 

An interesting portion of the new legislation is the requirement that the Agency develop a web portal “for the purpose of enhancing review and promoting timely issuance of permits”.  Within six months of the effective date, the Agency is required to develop the portal and to include a checklist and guidelines relating to the completion of permit applications.  Within two years of the effective date, the Agency must include permit applications that can be completed and saved electronically on-line and that can be submitted electronically with digital signatures.  Also within two years of the effective date, the Agency is required to establish an on-line tracking system so applicants can review the status of pending applications.  Prior to the development of the on-line tracking system, the Agency is required to post semi-annual reports on the website regarding statistics on the timeframe for issuing air construction permits, new NPDES permits and associated water construction permits, and modifications of major NPDES permits and associated water construction permits.  The new provision also allows the Agency to share copies of draft permits and final permits with the applicant prior to issuance if the permit applicant requests the draft documents.  The section also allows for applicants to suggest permit language for Agency consideration. 

Except with respect to fees associated with expedited permit review, the increases in the air permit fee provisions were not significant.  Beginning January 1, 2012, the fee for the lifetime operating permits and FESOPs increases from $200 to $235 per year.  The fees for sites with permitted emissions of at least 25 tons but less than 100 tons per year increase from $18.00 to $21.50.  Finally, for sources permitted to emit at least 100 tons per year of any combination of regular air pollutants, the fee increases to $21.50 per ton per year (up from $18 per ton) and provides fee caps. 

Governor Quinn has indicated that the new legislation shows that Illinois has a pro-business environment.  According to a press release, Governor Quinn said:

“Simplifying and speeding up the review process for environmental permits will help Illinois companies begin hiring, investing and producing more quickly.  This law is a great example of my administration’s commitment to reducing the burden on Illinois’ businesses -- both large and small -- so they can grow and create more jobs. 

Whether the legislation will have the effects intended remains to be seen.  The legislation was supported by the business community.

By Philip L. Comella

EPA’s struggle to distinguish between a waste and a recyclable material, which began in its original May 1980 rulemaking under the Resource Conservation and Recovery Act, takes its latest turn in a new proposed rule  signed by EPA Administrator Lisa Jackson on June 30, 2011. 

This proposed rule, which should be published in the Federal Register soon, is the result of a settlement between EPA and the Sierra Club over EPA’s October 2008 rule on the same topic, in which the Agency liberalized the regulation of the form of recycling known as reclamation.  Prior to the 2008 rulemaking EPA had generally considered reclamation (the processing or regeneration of a material to recover a usable product), as akin to treatment, and hence considered most materials destined for reclamation to be solid wastes.

EPA’s October 2008 rule exempted certain forms of reclamation from hazardous waste regulation but in doing so increased the complexity of an already intricate regulatory scheme known as the definition of solid of waste.  This definition is used to determine the threshold question of whether a given material is regulated as a solid or hazardous waste under RCRA or is instead a recyclable material exempt from regulation.  The October 2008 rule, among other things, established streamlined requirements for (a) materials generated and legitimately reclaimed under the control of the generator; (b) materials that are transferred to another entity for legitimate recycling; and (c) determining, on a case-by-case basis, whether a given material should be exempt from waste classification because of the manner in which it would be recycled.  The rule also defined legitimate recycling by comparing the composition and handling of the reclaimed material against the raw material it was intended to replace.

The Sierra Club thought the 2008 relaxation of the rule governing reclamation activities lacked adequate safeguards and thus sued EPA, resulting in the settlement that forced EPA’s agreement to sign a revised proposal by June 30, 2011.  In sharp contrast to the 2008 rule, the new proposal tilts the balance of “recycling” in the other direction, and cuts back on some of the flexibility in the October 2008 rule.  Among other things, gone is the “transfer-based exclusion” now found at 40 CFR 261.4(a)(24), which is proposed to be replaced with an “alternate hazardous waste standard” under Part 266, and which requires notification and operating standards similar to those of a hazardous waste facility.  EPA’s new proposal also adds a definition for when a recyclable material is adequately “contained” while it is being stored, and makes it clear that legitimate recycling can only occur if the secondary material (the material destined for reclamation) has comparable levels of constituents to products made from raw materials.

So what does this mean?  First, with regard to applicability, it is important to note that because EPA’s October 2008 final rule was considered less stringent than the existing definition of solid waste, it is generally effective only in the few states (including Illinois, Pennsylvania, New Jersey, Iowa, Idaho and Alaska) that have adopted it.  The same will be true for the new proposal.  Second, as of this time, the fear of adverse environmental consequences from “sham recycling” continues to have great weight in EPA’s attempt to strike a fair balance between protecting the environment and encouraging recycling.

Watch here for additional updates and information about this rulemaking.

By Jeryl L. Olson

USEPA has determined that certain information required to be submitted to the Agency under the Greenhouse Gas Reporting Rules of 40 CFR Part 98 will not be treated as Confidential Business Information, but will be available to the public. In a Final Rule published in the Federal Register on May 26, 2011, USEPA amended the Confidential Business Information provisions of 40 CFR Part 2 to provide that certain greenhouse gas emissions reporting information required under 40 CFR Part 98 (which for most industrial categories is after September 30, 2011) will be available to the public. For direct sources of GHG emissions (including approximately 28 industrial categories) and for suppliers of greenhouse gases, information on emissions data, emissions calculations methodology and operating conditions submitted to USEPA under the GHG reporting rule will be considered publicly available information. Materials throughput, and production data that are not specific inputs for emissions calculations, will continue to be protected as CBI and will not be released to the public. USEPA is continuing its confidentially determinations for additional industrial categories.

By Andrew H. Perellis

On April 27, USEPA and the U.S. Army Corp of Engineers (USACE”) released proposed guidance clarifying the definition of “Waters of the United States” subject to jurisdiction under various Clean Water Act (“CWA”) regulations. The guidance is intended to define “Waters of the United States” to assist USEPA and USACE staff in making determinations about applicability of various CWA provisions in light of the Supreme Court’s decisions in Solid Waste Agency of Northern Court County v. U.S. Army Corp of Engineers, Rapanos v. United States (“Rapanos”) and United States v. Riverside Bayview Homes. Once the guidance is finalized, it will serve as basis for future rulemakings, codifying the extent of Clean Water Act jurisdiction.

Compared to existing guidance, (which the new guidance is intended to replace), the definition of “Waters of the United States” is expanded, but the new guidance retains a case-by-case consideration of facts and circumstances in jurisdictional determinations. The guidance defines “Waters of the United States” so that that term is interpreted consistently under the CWA Section 303 Water Quality Standards, Section 311 Oil and Hazardous Substance Liability Provisions, Section 401 Permitting Provisions, Section 402 NPDES Permitting Provisions, and Section 404 Wetlands/Dredge and Fill Permitting Provisions. The guidance generally: (i) identifies waters which are specifically protected under the CWA; (ii) identifies waters which are protected under the CWA on a case-by-case analysis, if it is determined such waters have a “Significant Nexus” with traditional navigable waters or interstate waters; and (iii) lists aquatic areas which are not regulated. Waters specifically identified as being protected under the CWA include, (as defined in the guidance): “traditional navigable waters”, “interstate waters” and wetlands adjacent thereto; “wetlands”; “non-navigable tributaries to traditional navigable waters that are relatively permanent”; and “other waters” that directly abut relatively permanent waters. The types of aquatic areas that are not regulated under the CWA include: certain “wet areas”; waters specifically excluded under existing CWA regulations; waters that lack a “Significant Nexus” to protected waters; waters that are created “artificially” by excavating dry land, including irrigated areas, lakes, ponds, reflecting pools, swimming pools, small ornamental waters; and new water-filled areas incidental to construction activities, including swales, ditches, depressions and subsurface drainage systems.