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Is Your Company Unknowingly Violating the Migratory Bird Treaty Act?

When it comes to the federal Migratory Bird Treaty Act, there is no room for error—consequences apply even if an individual or company is unaware of violations.

When signed into law almost 100 years ago, the Migratory Bird Treaty Act (MBTA) of 1918 aimed to prevent the unregulated hunting of migratory birds. In that day and age, a bird’s plumage was literally used as a “feather in the cap” in the fashion industry alongside many other commercial trade endeavors, making many bird species in need of protection. The passage of the MBTA meant that ALL activities related to taking or killing migratory birds or their eggs, parts, and nests were considered illegal and subject to fines and punishment. In the past century, the MBTA’s scope expanded to cover more than 1,000 migratory bird species under several treaties and conventions.

The law has been enforced by the United States Fish and Wildlife Service (USFWS), within the U.S. Department of the Interior, and interpreted by many courts as a strict liability crime. This means that even those who indirectly and unintentionally kill a migratory bird, through actions such as failing to prevent birds from being electrocuted by power lines, can be charged with a misdemeanor, which carries fines and possible jail time. Those who knowingly violate the act can get a felony charge carrying up to a $250,000 fine and up to two years in prison. This applies to each affected bird.

The MBTA has posed a key challenge for various industries whose daily activities could inadvertently result in the “take” of migratory birds, including energy, real estate development, transportation, forestry, and others. The MBTA has significant operational and economic implications, particularly if a company is charged with multiple violations.

In May 2015, the USFWS announced that it would evaluate the potential impacts of a permit system for regulating and authorizing incidental take and potential mitigation requirements. The anticipated rulemaking would address how to set up a permit system and would define “take” under the MBTA. To date, no proposed rule or environmental impact statement has been issued. However, the U.S. Department of the Interior’s Office of the Solicitor issued a memorandum on January 10, 2017 that reaffirmed the MBTA’s broad prohibitions on taking and killing migratory birds, including “take” that is incidental to industrial or commercial activities.

The team at EDGE has the expertise and experience to help your project successfully navigate the complex issues associated with the Migratory Bird Treaty Act. Our staff has experience identifying suitable habitats for species protected under the MBTA and consulting with the USFWS. EDGE can also identify and assist with the implementation of appropriate measures to avoid impacts to avian species and, where impacts are unavoidable, negotiating mitigation for impacts to species protected under the MBTA.

Contact EDGE, and we can provide further insight into the Migratory Bird Treaty Act.


How Will Your Business be Impacted by Accidental Release Amendments?

More than 54,000 public comments and several organizational petitions played a key role in the Environmental Protection Agency’s (EPA) recent decision to push back the effective date for amendments to the Risk Management Plan (RMP) Rule for chemical facilities. The RMP Rule, which implements Section 112(r) of the 1990 Clean Air Act amendments, requires facilities that use extremely hazardous substances to develop a Risk Management Plan. These plans must be revised and resubmitted to the EPA every five years.

Recent proposed amendments to the RMP Rule were developed in response to several catastrophic events at chemical facilities in recent years– in particular, the 2013 fertilizer facility explosion in West, Texas, that killed 15 people. Soon after the explosion, President Barack Obama issued an executive order that directed the EPA to make changes to the rule aimed at improving chemical facility safety. The resulting amendments, finalized in December 2016 and originally slated to go into effect March 14, 2017, were designed to:

  •     -Prevent catastrophic incidents by improving incident prevention program requirements.
  •     -Enhance emergency preparedness to ensure coordination between facilities and local communities.
  •     -Improve information access to help the public understand the risks at RMP facilities.
  •     -Improve third-party audits at RMP facilities.

The proposed amendments are now slated to become effective February 19, 2019. The RMP Rule applies to those facilities, referred to as ‘‘stationary sources’’ under the Clean Air Act that are subject to the chemical accident prevention requirements at 40 CFR part 68. This includes stationary sources holding more than a threshold quantity of a regulated substance in a process.

Several opponents of the proposed amendments say new requirements could result in significant compliance costs for industry that would outweigh the potential prevention of future chemical accidents. The Utility Solid Waste Activities Group (USWAG) stated in its submitted public comments that the EPA’s efforts should be narrowly tailored to minimize the prevalence and consequences of the types of releases that have occurred since the RMP’s adoption. USWAG’s members believe that the safety practices and measures already in place at utility facilities are more than adequate to protect facilities from potential accidents.

Similar petitions for reconsideration were submitted by the RMP Coalition, the Chemical Safety Advocacy Group (CSAG), and a collective that included the states of Louisiana, Arizona, Arkansas, Florida, Kansas, Kentucky, Oklahoma, South Carolina, Texas, Wisconsin, and West Virginia.

Rep. Markwayne Mullin (R-OK) introduced House Joint Resolution 59 on Feb. 1 in an effort to block the amendments under the Congressional Review Act.

Proponents of EPA’s proposed amendments argue that while numerous chemical plants are operating safely, in the last 10 years, RMP data shows that there have been more than 1,500 reportable accidents resulting in 58 deaths, 17,099 people who were injured or sought medical treatment, and almost 500,000 people evacuated or sheltered-in-place. They said changes to the RMP Rule will help protect local first responders, community members and employees from death or injury due to chemical facility accidents.

On behalf of 26 organizations, the Environmental Justice Health Alliance called for congressional leaders to block attempts to nullify amendments to the RMP Rule. They say that the chemical safety improvements could prevent disasters and save lives.

The League of Conservation Voters stated that, “It is time to issue enforceable standards that would require the use of inherently safer systems to prevent chemical disasters. The EPA, DHS, and OSHA need to modernize chemical plant safety regulations to prevent disasters whether they are triggered by accidents, terrorism or natural disasters.”

EPA officials say that during this delay the agency will conduct a reconsideration proceeding to review objections raised by petitioners to the final RMP Rule and to consider other issues that may benefit from additional comment.

The team at EDGE has the expertise and experience to help you successfully navigate the complex landscape of environmental regulations and offer several Clean Air Act services, such as risk management plan reporting. We are here to answer your questions and advise you of your strengths and vulnerabilities regarding the proposed amendments to the RMP Rule, and what steps you should take to prepare for future implementation.


Is your company in danger of paying for Clean Air Act violations?

A resounding decision recently handed down in a Houston federal district court has some corporations concerned that Clean Air Act violations could equate to large penalties – for the violations themselves and possible legal costs associated with them. U.S. District Judge David Hittner, Southern District of Texas, ruled that Irving-based ExxonMobil profited by delaying the implementation of pollution control measures at its refinery and chemical plant in Baytown, Texas, and ordered the company to pay fees to the tune of $19.95 million.

Hittner’s decision was in response to a civil lawsuit brought against ExxonMobil by plaintiffs Environment Texas and Sierra Club, who alleged the company violated its state-issued, federally mandated operating permits by releasing 10 million pounds of pollution over the course of 16,386 days between 2005 and 2013 as opposed to implementing pollution control measures required by the Clean Air Act. ExxonMobil officials said they disagree with the ruling and are considering legal options, including an appeal. They stated that the company’s compliance history and good faith efforts weigh against imposition of a penalty.

What does this mean for other companies responsible for industrial operations and the associated pollution-reduction measures mandated by the Environmental Protection Agency (EPA) to improve ozone levels in Texas metroplexes? As this decision and precedent prove, companies should be on guard against the significant financial penalties involved with Clean Air Act violations.

The environmental plaintiffs have also successfully pursued legal action against Shell Oil Company and Chevron Phillips Chemical Company for Clean Air Act violations. They can pursue these lawsuits due to an enforcement mechanism Congress included in the Clean Air Act and other federal environmental laws. According to a statement released by the plaintiffs after the ExxonMobil decision, it may not be their last.

“Today’s decision sends a resounding message that it will not pay to pollute Texas. Compliance with air pollution laws and operating permits is mandatory, not optional, and we will not stand idly by when polluters put our health and safety at risk.”
Dr. Neil Carman, Clean Air Program Director for the Sierra Club Lone Star Chapter
(http://environmenttexas.org/news/txe/federal-court-exxon-violated-clean-air-act-over-16000-times-must-pay-1995-million-penalty (April 26, 2017)

The EPA’s Next Generation (NextGen) Enforcement initiative is their attempt to “increase compliance” with environmental regulations using technological advances including information technology. As stated from the EPA Assistant Administrator, Cynthia Giles, EPA’s NextGen tools include, “public accountability through increased transparency of compliance data.” This increased transparency of compliance data, “allows the public, impacted community members, neighboring facilities, and other agencies to play a role in assessing compliance.” As we see a change in the EPA, we should also expect to see a continuing change in how compliance is enforced. As the public has access to more and more data, civil, third-party lawsuits will be easier for plaintiffs to file, and we’ll see more and more enforcement from the public.

The team at EDGE has the expertise and experience to help you successfully navigate the complex landscape of environmental regulations and offer several Clean Air Act services, such as pollution prevention and control technology evaluations, emissions estimates and emissions inventory reporting, and federal (PSD/NAAQS) and state toxics dispersion modeling impact analyses, among others. We can answer your questions and advise you in your quest to maintain compliance and operate effectively within the state’s Clean Air Act implementation plan (SIP).


Will the outcome of Clean Air Act case impact our region?

Texas officials and industry leaders are diligently awaiting the outcome of a legal decision pending before a federal appeals court — South Coast Air Quality Management District (SCAQMD) v. EPA, No. 15-1115– that could push the State Implementation Plan (SIP) several steps back in its pursuit of compliance under the Clean Air Act. The state’s two largest metropolitan areas – Harris-Galveston-Brazoria (HGB) and Dallas-Fort Worth (DFW)– have been deemed ozone nonattainment areas by the Environmental Protection Agency (EPA), which means the areas are considered to have air quality that does not meet National Ambient Air Quality Standards (NAAQS) for ozone. However, both areas have made forward progress in recent years, improving ozone levels despite marked increases in population in both metroplexes.

In the past 18 months, the state gained traction in its quest to come into compliance by a mandated 2018 deadline with the EPA’s approval of “redesignation substitute demonstrations” for the HGB (Oct. 20, 2015) and DFW (May 25, 2016) regions. The redesignation substitute demonstration indicates that the area has attained the revoked 1997 8-hour ozone NAAQS due to permanent and enforceable emission reductions and that it will maintain that NAAQS for 10 years from the date of the EPA’s approval of this demonstration.

The SCAQMD, the air pollution control agency for California’s Orange County and the urban portions of Los Angeles, Riverside and San Bernardino counties, is challenging the EPA’s redesignation substitute process. If the court rules against the petition, the HGB region continues its path to attainment by July 20, 2018. The HGB region is currently designated as moderate nonattainment for the 2008 standard. If the court votes in favor of the SCAQMD, then HGB area would default to severe nonattainment status, which carries serious consequences, including increased restrictions on industry expansion, permitting delays, additional regulatory oversight, and reduced federal transportation and transit funding.

The federal appeals court has not yet acted on the petition, nor the EPA’s request to allow the agency to work on the issues with involved parties rather than have them settled by the courts. That could be a win-win for the HGB region because, as is stated in the EPA’s response to the petition, the agency “…is not seeking to remand the Redesignation Substitute.”

The team at EDGE is closely watching developments in this case and we are standing by to answer your questions about the process, or to advise you of how your company could be affected under either scenario. We have the expertise and experience to help you successfully navigate the complex landscape of environmental regulations and offer several Clean Air Act services, such as: pollution prevention and control technology evaluations, emissions estimates and emissions inventory reporting, and federal (PSD/NAAQS) and state toxics dispersion modeling impact analyses.


EDGE KEEPS PIPELINE PROJECT ON TRACK AND MOVING FORWARD

ABOUT:

In 2015, EDGE Engineering & Science, LLC was chosen as a third-party contractor by the Federal Energy Regulatory Commission (FERC) and subsequently contracted by a natural gas transmission client, to prepare an Environmental Assessment (EA) for 37 miles of new pipeline, two new compressor stations, and associated aboveground facilities in West Virginia and Ohio.  The project provided natural gas to the existing Rockies Express Pipeline and Texas Eastern Transmission pipeline systems from the Central Appalachian Basin.

Once the EA was successfully completed, the FERC Project Manager further requested that the project sponsor extend EDGE’s contract to assist with the review of the construction implementation plan.  EDGE was also asked to assist with the reviews and approvals of notices to proceed (NTP) with construction and construction variances. At the time, FERC staff was experiencing a larger than normal workload and EDGE’s ability to continue to assist the FERC was instrumental in keeping the project on schedule.

PROBLEM:

Construction of pipeline infrastructure, especially in the Midwest and Northeast, presents its own set of unique time restriction challenges. These challenges are largely due to migratory patterns of certain birds protected by the Migratory Bird Treaty Act. The act protects over 1,000 bird species and their habitats. The project sponsor needed to clear the forested portions of the pipeline right-of-way, to reduce impacts on bird species, by the targeted date. If it didn’t, the company would either have to wait another year or try to receive a waiver from the United States Fish and Wildlife Service to move forward with the project.

The endangered Indiana Bat also provided a challenge. The Indiana Bat is protected under the Endangered Species Act which protects endangered and threatened species along with their critical habitats. The team needed to prove that the project would not adversely affect the bat’s summer migration to wooded areas.

SOLUTION:

Several of EDGE’s team members spearheaded the project, using their combined decades of extensive experience on FERC energy-related projects.

Since EDGE was already familiar with the issues surrounding the project, the team was able to assist the FERC staff with reviews, processing of NTPs and construction variances in a timely manner that avoided construction delays.

RESULTS:

EDGE’s deep knowledge of the issues and complexities of the project, along with their keen understanding of construction needs related to the protection of migratory birds, gave EDGE the upper hand in working cooperatively with both the FERC and the client to keep the project on track and on time.

Given the successful completion of the project, EDGE has been contracted once again to assist the same natural gas client with the completion of the next phase of the project.

The project’s original FERC Project Manager retired at the end of 2016, presenting EDGE with a new opportunity:  Helping to transition the new FERC staff, who did not have prior knowledge of the project or specific issues, so they can process NTPs and variance requests.

EDGE has since risen to the challenge and is excited to announce they are paving the way toward project completion.

“Completion of the environmental review for this project led to a quick and efficient review of the implementation plan, and later variance requests, given that we already understood the environmental constraints and considerations, and could also draw on the mitigation that the applicant had committed to during the environmental review process” said Jenny McCoy, EDGE Project Manager.


Lessons From Dakota Access

LESSONS FROM DAKOTA ACCESS

Like many of our clients, we’ve been watching the back-and-forth over the Dakota Access Pipeline (DAPL) with considerable interest. And we’re still watching—even now, with construction at the hotly debated Lake Oahe crossing underway, the project still faces risks of injunction from the federal bench, pursuant to a February 9th request filed by the Cheyenne River Sioux Nation of South Dakota.

Nevertheless, even with the matter not entirely settled, the case offers a fascinating and informative look at the challenges and risks faced by companies engaging in the construction of facilities and infrastructure—particularly when that construction is subject to extensive federal and local approvals and regulation, and when multiple overlapping jurisdictions are involved.

To Recap

In July of 2016, the Army Corps of Engineers granted Dakota Access LLC permission for DAPL to cross Lake Oahe, a dammed section of the Missouri River located just upstream from the tribal lands of the Standing Rock Sioux Tribe. This permission was granted under Section 408 of the Rivers and Harbors Act and Section 404 of the Clean Water Act.

Two days after this permission was granted, the Standing Rock Sioux Tribe filed suit against the Army Corps of Engineers, asserting that the Corps had not appropriately consulted with the tribe per Section 106 of the National Historic Preservation Act—an obligation the tribe believed to be triggered by the Section 408 permission. The tribe filed a motion for a preliminary injunction to stop construction of the pipeline in the area, but that motion was denied by both the district court and on appeal to the District of Columbia circuit.

In the meantime, DAPL (and the tribes’ efforts to stop its construction at the Lake Oahe crossing) became a national (and international) cause and months of protests began at the site.

Not coincidentally, the Corps began to reassess its earlier permission, eventually asserting that construction of the pipeline at this location would require a specific easement, per requirements in the Mineral Leasing Act—and that this easement would require additional review under the National Environmental Policy Act.

Cue a counter-claim from Dakota Access (November 15, 2016) and then, abruptly, a December 4th announcement from the Corps in which they declared that their decision on the easement for the Lake Oahe section of DAPL would be deferred pending additional review and the preparation of an Environmental Impact Statement. On December 5th, Dakota Access challenged the delay, requesting summary judgment on their earlier cross-claim: asserting that the original Section 408 decision amounted to the granting of an easement for the original pipeline route.

Briefings around this motion were still underway when President Donald J. Trump issued a January 25, 2017 Executive Order directing the Corps to reconsider its decision to require additional review; on February 7th, the Corps reversed itself and allowed construction to proceed.

Key Takeaways

Dakota Access suffered some pitfalls, and enjoyed some luck. The pitfalls weren’t entirely of their own making. The luck was, well, luck—but it represents a fine example of the ways that a change in Presidential administration (and governing philosophy) can impact the fortunes of the industry.

First pitfall: politics. While there is no indication that the Corps did anything legally wrong in its initial July 25, 2016 approval of the pipeline route, and in fact, even in the December 4th order halting construction the Corps re-asserted this point, the Obama administration was sufficiently sensitive to the politics and optics of the matter that it directed reconsideration of the DAPL route. Would this have been different had the matter not arisen in an election year? Difficult to say with certainty.

Second pitfall: tribal government and tribal lands. The relationship between the U.S. federal government and sovereign tribes is historically fraught and intensely complex, with layers of jurisdiction and authority that are often unclear, relying as they do on interpretation of treaties and agreements that can date to the 19th century and earlier. While tribal claims in this case are still subject to litigation, the lesson is clear: assume nothing. Some have argued that in this case, Dakota Access would have been well-advised to encourage the Corps to pursue a more thorough process in granting the initial routing permission—anticipating the significant financial and reputational risk of a public controversy.

Stroke of luck: the election. The election of Donald J. Trump as President shifted all of the winds into Dakota Access’s favor. It’s not a plot twist many were anticipating.

The EDGE Advantage

With tenured experience in all aspects of environmental consulting, including Section 404 and 408 permitting, pipeline routing, and tribal consultation and National Historic Preservation Act Section 106 consultation, EDGE is a crucial partner to leaders in the midstream energy business, nationwide.

Our diverse experience in permitting, compliance, and agency and tribal consultation—and our deep understanding of the complexities and reputational risks of historical, cultural, and tribal laws and regulations—makes EDGE an essential partner in even the earliest stages of project planning.

While DAPL seems at this point to be proceeding to completion, the name of the pipeline and the company that is building it have become a rallying cry for activists across the nation and around the world. While it is difficult to quantify the costs to reputation, the costs to the project (delays, lawsuits, legal maneuvering) have been far from trivial.

When time is tight and stakes are high, bring further insight to bear.


Final EPA ICR Announced

On November 10, the Environmental Protection Agency (EPA) issued the third and final Information Collection Request (ICR) for regulations designed to control methane and other emissions from the oil and natural gas industry

Operators who have been selected to provide this information will see a three-part request in some
cases. Part One is a basic facility survey for centralized production sites—essentially, oil and/or natural gas wellsites. The Part Two Gathering and Boosting Tool Survey is specifically for operators of gathering andboosting compressor stations and pipeline facilities. If you operate a wellsite that includes these facilities, you’ll be required to complete the second survey as well.

The third survey is the most complex. About 10 percent of operators required to complete the Part Two
(Gathering and Boosting Tool) survey will be randomly selected to complete the detailed Part Two FacilitySurvey—using the EPA electronic Greenhouse Gas Reporting Tool (e-GGRT) to collect the data. With the comprehensive data requested in this survey, your company runs the risk of allocating excess resources to locating and providing accurate information.

Fortunately, you’re not alone. The team at EDGE has the experience and technical expertise needed to
help our clients complete these surveys, accurately and on time. We know your operations, and we’re
standing by to answer your questions about the process, or to provide in-depth survey response support.

Watch your mailbox for EPA ICR letters; if you receive one, call EDGE. Bringing further insight.


‘Tis the (Reporting) Season

On October 17, 2016, the Environmental Protection Agency celebrated the 30th anniversary of the launch of the Toxics Release Inventory (TRI).

It was a timely reminder: while TRI and associated EPCRA reporting isn’t due until July, the new year is around the corner, and that means the reporting season is coming up fast. First up? March 31. The deadline for Air Emissions Inventory reporting, Mass Emissions Cap & Trade (MECT) annual reconciliations, and Greenhouse Gas Inventory reporting all fall to the same day—with the last being particularly complex, due to recent rule changes.

We know you didn’t go into business to be burdened with environmental bureaucracy. In contrast, the principals and professionals here at EDGE bring decades of experience to emissions inventories and reporting.

We work closely with clients in manufacturing, upstream oil & gas, refining, petrochemicals, natural gas processing, and other industries to assess their emissions profiles, complete the necessary reporting, and ensure that it is filed in a timely manner.

EDGE lets you focus on your core business with the confidence of knowing that you remain in full compliance with mandatory environmental reporting requirements: local, state, and federal. Whether you’re not yet a client, or one of the many who rely on us every year, EDGE is on your side.

TIPS ON HOW TO PREPARE FOR REPORTING SEASON
• Check for changes in reporting applicability for your site
• Collect your operating data from 2016
• Gather data on spills and other releases that occurred in 2016

Stay ahead of the deadlines: let EDGE bring further insight to your annual emissions reporting.

 


Responding to the Oil & Gas ICR Effectively.

Last March, the EPA announced its next step in reducing emissions from the oil and natural gas industry: moving to regulate emissions from existing sources. In May, the EPA issued a draft Information Collection Request (ICR) to require oil and natural gas companies to provide extensive information needed to develop regulations to reduce methane emissions from existing oil and gas sources. Afterwards, the agency issued a Request for Information to seek commentary on innovative strategies that can accurately and cost-effectively locate, measure and mitigate methane emissions. The comment period on the ICR closed on August 2, 2016. EPA has stated that they expect to issue the ICR this fall.

With extensive experience serving the energy and oil and gas industries across the U.S., EDGE can help effectively manage company response programs. We have experience leading companies through Utility Maximum Achievable Control Technology (MACT) and Refinery MACT ICRs and subsequent rulemaking. We’ve assisted clients with their initial applicability reviews and reporting for the New Source Performance Standard (NSPS) Subpart OOOO and Greenhouse Gas Reporting Subparts C and W. Additionally, we have other oil and gas experience that required direct measurement of VOC emissions from oil and condensate storage tanks in the Dallas-Fort Worth area, as well as evaluation of VOC and hazardous air pollutant (HAP) emissions from produced water/saltwater storage tanks servicing oil and gas wells. These projects, which were managed by now EDGE personnel, give EDGE a unique insight into the operations of oil and gas facilities—insight that will prove beneficial in helping operating companies respond to the forthcoming ICR.

It is not too early to begin preparations for the ICR. If you plan on using a consultant to support this resource-intensive effort, then engage one now to facilitate preparations. Give us a call. We would love to buy you lunch and discuss a solution that makes sense for you.

Take the next step by contacting Chris Colville and George Holder for assistance in tackling this environmental challenge hurdle, and we look forward to providing further insight.


Sources:
EPA’s Actions to Reduce Methane Emissions
Proposed Information Collection Request
Upstream Oil and Gas Storage Tank Emission Measurements
Emission Factor Determination for Produced Water Storage Tanks


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