Board Adopts Erosion and Sedimentation Rule Amendments At the Board of Natural Resources’ December 2, 2003 meeting, the Board adopted the proposed amendments to the Rules for Erosion and Sedimentation Control. The adopted rule amendments modifies the definition of “land disturbing activity” to match the exclusions to the activities exempted from the Erosion and Sedimentation Control Act (O.C.G.A. § 12-7-17). The Department of Natural Resources has modified its website, which may be accessed at: www.gadnr.org/. The Board’s next meeting will be in January 2004, the date of which is unknown because, at the time of publication, the Board had not announced its 2004 meeting schedule.
EPD Proposes Amendments to Hazardous Waste and Water Quality Rules EPD has proposed amendments to the Rules for Hazardous Waste Management, Chapter 391-3-3-11, and Water Quality Control, Chapter 391-3-6. The proposed amendments to the Rules for Hazardous Waste Management would incorporate into the Georgia rules modifications made to the federal hazardous waste regulations. Specifically, the modifications would incorporate changes to the federal rules that establish conditions for excluding from the definition of hazardous waste certain hazardous secondary materials used to make zinc fertilizers. The amendments would also incorporate changes to the federal rules that added new treatment subcategories under the land disposal restrictions for radioactively contaminated batteries containing cadmium, mercury, and silver. The amendments would make typographical corrections to Georgia’s rules for Hazardous Waste Facility Permits.
The proposed amendments to the Rules for Water Quality Control would add Chapter 391-3-6-23 “Land Disposal of Septage.” The proposed rules are the result of the 2002 enactment of House Bill 1406, which is more commonly known for its modification of the Hazardous Site Reuse and Redevelopment Act. (See Georgia Environmental Law Letter, Vol. 13, No. 10 (April 2002) at p.2 for a description of the bill.) The act required EPD to issue rules requiring the permitting of any land disposal site that receives septic tank waste from more than one septic tank pumping and hauling business.
The proposed rules define land disposal as one of the following: spraying or spreading of septage onto land, the injection of septage below the land surface, or the incorporation of septage into the soil for the purpose of soil conditioning or fertilizing. The proposed rules would require any person operating a land disposal site to obtain a permit from EPD. Before issuing the permit, the owner or operator must have an EPD-approved septage management plan. Under the proposed rules, EPD cannot issue a permit unless the governing authority of the county or counties in which the site is located has approved the issuance of the permit. The approval must be in the form of an adopted resolution by the governing authority.
The proposed rules also contain the following minimum buffer requirements: (1) no land disposal site can be within 300 feet of a residence or other land frequently used by the general public; (2) domestic sewage cannot be applied within 300 feet of the normal water level of any impoundment, other water of the state, a sinkhole, marshland, or wetland; (3) domestic sewage cannot be applied within 500 feet of a well; and (4) an undisturbed vegetative buffer strip of at least 50 feet must be maintained along streams and drainage ditches within or adjacent to a disposal site. The proposed rules contain specific requirements for the land application and subsurface injection of septage. A copy of the proposed rules is available on the Internet at: www.ganet.org/dnr/environ/.
EPD Releases Report on Georgia’s Environment EPD recently released its 2003 report on Georgia’s Environment. The Report is designed to track environmental progress in Georgia and outline the goals that EPD believes still need to be accomplished. The Report is divided into sections on water, air, and land. The Report identifies the management of water resources as the state’s top priority in the near future. The Report states that EPD regulates the use of water resources through surface and groundwater withdrawal permits. The combination of an expanding Georgia population and the increase of water usage on Georgia farms over the last few decades have put a strain on Georgia’s water resources.
The Report provides an estimated percentage of total water used in the state in 2002 by local governments, industries that supply their own water (i.e., the industry did not purchase water from a local government), and agriculture. The Report states that local governments used 39%, industries that supplied their own water used 19%, and agriculture used 42%. The Report estimates that, for every 100,000 new residents to Georgia, an additional 14 to 15 million gallons per day of water supply are necessary.
The Georgia legislature charged the Metropolitan North Georgia Water Planning District, with EPD’s input and assistance, to develop long-term regional water plans for storm water management, wastewater management, and water supply and conservation. One of the complications facing EPD and the Planning District is the fact that metropolitan Atlanta receives 80% of its water from the Chattahoochee River, one the smallest rivers in the country that serves a major city. Another complicating is the fact is that the Atlanta metropolitan area’s access to groundwater is limited because granite underlies most of the area. The Report also discusses Georgia’s continued evaluation of impaired water segments, the total maximum daily load program, the changes to the erosion and sedimentation law, and the Georgia’s safe drinking water program.
The Report’s discussion of Georgia’s air quality focuses on the metropolitan Atlanta area’s compliance with the federal groundlevel ozone standard and the state’s ability to comply with the federal fine particulate matter standard. The Atlanta area remains out of compliance with the federal one hour ozone standard. EPA downgraded the Atlanta nonattainment area to “severe.” (See Georgia Environmental Law Letter, Vol. 15, No. 4 (October 2003) at 1-2.) The remainder of the state, which is in compliance with the one hour standard, is subject to the new ozone standard, based on an eight-hour average measurement. EPD proposed to EPA that, in addition to the Atlanta metropolitan area, the Augusta and Macon areas will be out of compliance with the eight-hour ozone standard. (See Georgia Environmental Law Letter, Vol. 15, No. 2 (August 2003) at 1.) EPD plans to continue its efforts to reduce the emissions of ozone precursors from vehicles, through the enhanced vehicle inspection and maintenance program and the sale of low-sulfur gasoline, and from stationary sources, through more stringent standards on large sources such as power plants.
The Report states that, based on monitoring data from 1999 through 2002, approximately 40% of the state is out of compliance with the new fine particulate matter standard. However, the concentrations of fine particulate matter measured have decreased each year since 1999. In 2004, EPA will designate areas that are out of compliance with the fine particulate matter standard. For any areas in Georgia designated as noncompliance areas, Georgia must submit a state implementation plan outlining the steps it will take to bring the areas into compliance with the standard.
The Report’s land section discussed the status of the Hazardous Site Inventory, the Hazardous Waste Trust Fund, solid waste landfills, and underground storage tanks. The Hazardous Waste Trust Fund is financed with fees collected from industries and government that produce, handle, and dispose of solid wastes, hazardous wastes, or other dangerous materials. (The Georgia General Assembly vastly reduced funding for fiscal year 2004. See Georgia Environmental Law Letter, Vol. 15, No. 1 (July 2003) at 1-2.) Fines collected by EPD are also used to finance the Trust Fund. In 2002, EPD collected $4.6 million from penalties, up slightly from $4.5 collected in 2001. As of July 1, 2003, 539 sites were listed on the Hazardous Site Inventory (HSI). The Report stated that cleanup is underway at 308 sites and 166 sites are under investigation. Since 1994, 158 sites have been removed from the HSI.
The Report also stated that 98% of the municipal solid waste in Georgia is being disposed of at landfills that possess a synthetic liner that is designed to minimize potential groundwater contamination. In 1994, only 45% of municipal solid waste was being disposed of at lined landfills. The Report states that EPD has confirmed leaks from 9,970 underground storage tanks since the inception of Georgia’s Underground Storage Tank Program. As of December 31, 2002, cleanup projects had been completed at 6,108 sites.
The Report is available on EPD’s website under “Georgia’s Environment” on the sidebar menu. The address for EPD’s website is: www.ganet.org/dnr/environ/.
Eight Quail Plantations Pay $359,750 Fine for Alleged FIFRA Violations On November 21, EPA Region 4 announced that eight quail hunting plantations, located in south Georgia, paid a total of $359,750 in civil penalties for alleged violations of the federal Fungicide, Insecticide, and Rodenticide Act (FIFRA). The alleged violations stemmed from the plantations’ use of Furadan 4F, a pesticide, to poison wildlife that prey on Bobwhite quail. EPA alleged that, between 1988 and 1999, the plantations injected chicken eggs with the pesticide and left the eggs out for predators of quails or of quail’s eggs to eat. EPA alleged that this practice caused the deaths of 16 bald eagles, 46 golden eagles, 28 hawks, 53 foxes, two dogs, five foxes, raptors, songbirds and other mammals.
In 1999, EPD began investigating the allegations, after a hunter reported that two of his dogs were killed after eating eggs. The Georgia Department of Natural Resources personnel inspected one of the plantations and found that the eggs were marked by red flags and found dead animals near the eggs. After further investigation, the Georgia Department of Natural Resources and the U.S. Attorney’s office fined the plantations. EPA sought a larger fine from the plantations resulting in this settlement.
The eight plantations involved are Albemarle Plantation, Ecila Plantation, J.W. Willis Property, Kolomoki L.LC., Nochaway Plantation, Nonami Plantation, Pinebloom Plantation, and Pineland Plantation. The Ecila, Pineland, Nochaway, and the Willis plantations paid $39,500 each. The Nonami Plantation paid $24,750, the Koloki Plantation paid $100,000, and the Albemarle Plantation paid $40,000.
REGION 4 NEWS
EPA Issues Final Rules Modifying New Source Review Regulations On October 27, EPA published final regulations modifying the New Source Review (NSR) program’s definition of routine maintenance, repair, and replacement activities. 68 Fed. Reg. 61248. The final rules modify the definition of routine maintenance, repair, and replacement under EPA’s NSR regulations. The modifications to the rule have been extremely controversial because as to whether a project constitutes routine maintenance, repair, and replacement often determines whether the facility becomes subject to the EPA’s NSR requirements.
The NSR program is divided into the Prevention of Significant Deterioration program (which applies in areas in compliance with the National Ambient Air Quality Standards) and the nonattainment NSR program (which applies in areas that do not meet the National Ambient Air Quality Standards). The New Source Review program applies to new and modified sources of air pollution when the sources are located at a facility that is a “major source.” The threshold for determining when a facility is a “major source” depends on the type of facility and whether the facility is located in an attainment or nonattainment area. Regardless of the facility’s location, once a source becomes subject to NSR requirements, the source must demonstrate that it is using state-of-the-art air pollution control devices.
Although the New Source Review program typically does not apply to existing sources, the NSR requirements become applicable to an existing major source that makes a “major modification” to its facility. A major modification is defined as one that results in a net emissions increase above the pollutant specific threshold. Congress added the NSR provisions to the Clean Air Act in 1977. Major sources that were operating prior to August 7, 1977, were not required to meet the NSR requirements. A common example of such a source is a power plant. Because many power plants were operating before August 7, 1977 these facilities, even though major sources of air pollution under the Clean Air Act, did not become subject to NSR requirements. Such a source would become subject to NSR requirements only if the source made a major modification to its facility.
In addition to the net emission increase threshold, the NSR regulations further define a major modification as a “physical change or change in operation at a major source.” The NSR regulations state that activities constituting routine, maintenance, repair and replacement do not constitute a physical change. However, the NSR rules did not contain examples or a definition of activities that EPA considered to be routine maintenance or replacement. EPA applied the exclusion on a case-by-case basis. During the latter part of the Clinton Administration, EPA brought several large enforcement actions against utilities alleging that numerous activities, which the power companies claimed were routine maintenance or repair, were actually major modifications that caused the facilities to be subject to NSR review. Several of the facilities subject to the enforcement actions were located within Region 4. (See Georgia Environmental Law Letter, Vol. 15, No. 1 (July 2003) at 4-6 for an article on a recent case arising from EPA’s enforcement action against Tennessee Valley Authority.)
The final regulations provide specific guidelines and examples concerning when EPA will deem an action to be routine maintenance, repair, and replacement. The rules state that the replacement of any component of a process unit with an identical or functionally equivalent unit, and maintenance and repair activities associated with the replacement activity, will meet the exclusion if the following three criteria are met: (1) the replacement cost of the component and the associated maintenance and repair cannot exceed 20 percent of the replacement value of the process unit; (2) the replacement does not change the basic design parameters of the process unit; and (3) the replacement activity does not cause the process unit to exceed any emission limitation or operational limitation that applies to the process unit.
Although EPA believes that the final rule will provide grater certainty to the regulated community and other interested parties, others argue that the definition of routine maintenance and replacement is too broad and that it will allow major sources to avoid NSR review. Upon publication of the final rules, twelve states immediately the final rules in court. Under section 307(b)(1) of the Clean Air Act, the exclusive forum for challenging final rules is the U.S. Court of Appeals for the District of Columbia.
IN THE COURTS
Georgia Supreme Court Overturns Jury Award for Property Damage On October 20, the Georgia Supreme Court overturned a $188,155 jury award to a landowner for damage caused to his property by the Georgia Northeastern Railroad (GNR) because the court held that the award may have constituted an impermissible double recovery. The case arose over damage alleged by Larry Lush, who owns 94.92 acres of land along the Etowah River in Cherokee County.
The property is crossed by a railroad track that spans the river via a bridge owned and maintained by GNR. Approximately 12.5 acres of the property are down river of the bridge. Mr. Lusk alleged that GNR allowed debris to accumulate against a bridge pylon and that the debris pile redirected the river’s flow onto the riverbank. Despite repeated requests by Mr. Lusk, GNR failed to remove the debris. Over several years, the diverted water eroded a 456 foot stretch of riverbank and washed approximately 588,000 cubic feet of soil into the river (0.6 acres). The jury awarded Mr. Lusk $5,400 for the diminution in the property’s fair market value before and after the damage and $182,755 for the estimated cost to restore the eroded riverbank.
The court stated that Georgia law prohibits the double recovery of damages. One cannot recover for the same injury based on two means of measuring the damage. Based on these points of law, the court held that one cannot receive an award of both the diminution in market value and costs to restore for the same injury occasioned by the same trespass and nuisance. The court also stated that Georgia law prohibits the cost of restoration being awarded as a measure of damages when the cost of restoration is disproportionate to the diminution of the property’s value due to the damage.
At trial, Mr. Lusk testified that his property was worth between $8,000 and $10,000 an acre. Based on a value of $9,000 per acre, the jury awarded Mr. Lusk for a loss of 0.6 acres, equivalent to the amount that washed into the river. The jury’s award of the $182,755 for restoration costs equaled the amount that Mr. Lusk’s expert testified it would cost to stabilize the eroded riverbank. The court held that it could not conclude, based on the jury’s form, whether the diminution award included the decrease in the value of Lusk’s land caused by the destabilized condition of the riverbank, which was included in the restoration award. Therefore, the court reversed the judgment and ordered that the case be retried.
Georgia Northeastern Railroad, Inc. v. Lusk, No. S03G0592, October 20, 2003 (Ga. 2003).
Articles reprinted with permission from M. Lee Smith Publishers LLC. An annual subscription for Georgia Environmental Law Letter is available athttp://www.mleesmith.com/env/gaenv.shtml Your subscription also includes an annual index, free binder, and a full year of access to Environmental Compliance Solution Central, a on-line resource just for subscribers.
This bulletin was prepared by the law firm of Arnall Golden Gregory LLP. It presents information on legal matters of general interest in summary form. This document should not be construed as legal advice or opinion on specific matters.
