Developing a project on or near a body of water requires navigation of numerous regulatory requirements. Such projects also are now being affected by legal developments.

Waters of the United States

The Clean Water Act (CWA) governs “waters of the United States.” There are two primary permitting programs under the CWA – the National Pollutant Discharge Elimination System (NPDES) and the Section 404 “dredge and fill” programs. The former requires a permit for discharge of a pollutant into “waters of the United States,” while the latter regulates the placement of dredged or fill material into “waters of the United States” (e.g., fill for development and water resource projects such as dams). How “waters of the United States” is defined affects, among other matters, facility siting, utility availability, and the cost and timing of development.

In June 2015, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published a controversial final rule amending the definition of “waters of the United States.” The rule was intended to make identification of waters protected under the CWA more consistent and easier to understand. However, many observers perceived the rule as expanding the federal government’s regulatory reach to cover more waters than covered previously. Among other issues, opponents raised concerns that farming, homebuilding and commercial development in or near these waters will require a Section 404 and/or NPDES permit when they didn’t need one previously.

Numerous parties across the country filed challenges to the rule. Thirteen states sued the EPA in federal court in North Dakota, and the court there issued an injunction temporarily blocking the rule in those states. Eleven other states filed suit in federal court in Atlanta. The EPA and USACE intended to proceed with enforcement of the rule in the rest of the country, but in October 2015, in a separate lawsuit, a federal appeals court in Cincinnati blocked the rule from taking effect in any state. In late August, the court in Atlanta ordered a stay of the challenge in that court, thus allowing the legal battle to play out in the U.S. Court of Appeals in Cincinnati.

The rule presently remains stayed from taking effect nationwide pending resolution of claims that it is illegal. As of late August, the EPA and USACE were battling a request by states, industry groups and environmentalists that the court in Cincinnati require the agencies to turn over additional documents that purportedly would inform the court’s decision regarding the legality of the rule. Bottom line: This is a slow-moving train, but one to keep an eye on.

Supreme Court decision

The Supreme Court recently issued a decision that should be celebrated by any construction industry professional who has sought or may wish to seek a “jurisdictional determination” from the USACE. As noted above, the CWA requires property owners to obtain a permit from the USACE before placing dredged or fill material into waters of the United States. Because it’s sometimes difficult to tell whether a given body of water is within the CWA’s reach, the USACE offers “jurisdictional determinations” to parties seeking clarification before they undertake an often arduous permitting process.

Since the passage of the CWA, these jurisdictional determinations could not immediately be challenged in court because they were not deemed to be a “final agency action.” Thus the USACE and courts required the persons affected by the jurisdictional determination to go through the entire permitting process before they could go to court. As a result, the property owner could spend significant sums of money (hundreds of thousands of dollars in some cases) to get a permit that may not have been necessary in the first place.

On May 31, in U.S. Army Corps of Engineers v. Hawkes Co., the Supreme Court corrected this situation in an 8-0 decision, holding that an approved jurisdictional determination by the USACE definitively stating the presence or absence of waters of the United States on a particular property is a final agency action judicially reviewable under federal law.

Proposed permit changes

An individual CWA dredge and fill permit is required in cases where a discharge will potentially have significant impacts to a body of water. For discharges that will have only minimal adverse effects (most projects), a general permit is usually suitable. General permits are preferred because they are issued with little if any delay or paperwork.

Earlier this summer the USACE proposed changes to 18 of the existing 50 nationwide permits (NWPs) that it issues and proposed two new ones. A table summarizing the changes and proposed new NWPs is available at: www.usace.army.mil/Portals/2/docs/civilworks/nwp/2017/nwp2017_sumtable_draft_May2016.pdf.

The USACE is reviewing public comments received on the proposed revisions and is seeking to make the final NWPs effective by March 19, 2017.

Increased max civil penalties

In a rule that took effect Aug. 1, the EPA increased the maximum daily penalties it may assess for environmental violations that occurred any time after Nov. 2, 2015. Any violation of an environmental statute enforced by the EPA, including the CWA (as well as the Clean Air Act, Toxic Substances Control Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation and Liability Act) may now result in a penalty that is up to 150 percent higher than the previous daily maximum.

For example, the maximum penalties the EPA can impose under certain provisions of the CWA have increased from $25,000 to $51,570 per day for each violation.

This maximum daily penalty increase will likely affect settlement negotiations with the EPA over alleged environmental violations, potentially making resolution of EPA enforcement actions more costly and time-consuming. Additionally, state environmental agencies may decide to increase their own maximum penalties to keep pace with the EPA.

Patrick Rowe is a partner with Sussman Shank LLP. He has expertise in environmental regulatory matters, real property transactions and litigation involving environmental and real estate issues. Contact him at 503-227-1111 or prowe@sussmanshank.com.

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On April 1, the Environmental Protection Agency published proposed revisions to its stormwater permitting rule for the Construction and Development Point Source Category (C&D rule). While most states (including Oregon and Washington) are authorized to regulate the discharge of stormwater from construction sites, the EPA remains the permitting authority in a few states, territories, and on most Native American reservations.

The EPA’s C&D rule generally applies to stormwater discharges from construction activity that disturbs an acre or more of land. Construction activity includes clearing, grading and excavation. The C&D rule applies only to stormwater discharged during construction. It does not apply once construction ceases and the site is stabilized.

The EPA has issued the proposed changes to the C&D rule pursuant to a settlement agreement to resolve litigation that challenged certain aspects of its December 2009 version of the rule. Among other actions, that version:

• established a numeric limitation on the allowable level of turbidity in discharges from certain construction sites

• established requirements based on best practicable control technology currently available, best available technology economically achievable, best conventional pollutant control technology, and new source performance standards based on best available demonstrated control technology

• included several provisions requiring permittees to implement controls, unless “infeasible” (although a definition of infeasible was not provided by the EPA)

• required permittees to “control stormwater volume and velocity within the site to minimize soil erosion”

Following promulgation of the 2009 C&D rule, several parties – including the National Association of Home Builders – challenged it. In particular, the parties contested the EPA’s data gathering and analysis used to support the numeric turbidity limit. In response, the EPA sought to stay the litigation, and agreed to reconsider certain aspects of the rule, including the numeric turbidity limitation.

In December 2012, the parties and the EPA entered into a settlement agreement, which required the EPA to propose for public comment certain changes to the rules. The EPA has now published the proposed revisions to the C&D rule.

Among other changes, this version:

• withdraws the numeric discharge limit for turbidity and proposes the use of best management practices in lieu of the turbidity limit

• defines infeasible (i.e., when it is “infeasible” to implement controls) to mean: “not technologically possible, or not economically practicable and achievable in light of best industry practices

• amends requirements regarding soil erosion to read: “control stormwater volume and velocity to minimize soil erosion in order to minimize pollutant discharges” (The EPA is proposing this change in order to link the requirement to control soil erosion to the discharge of pollutants. The proposed change would continue to allow permitting authorities to develop permit language to control stormwater volume and velocity to minimize soil erosion at any location, such as on slopes as well as within channels and conveyances, that may contribute pollutants to discharges from the construction site.)

• further amends language regarding soil erosion to read: “control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize channel and streambank erosion in the immediate vicinity of discharge points.” (This change is intended to distinguish between increased erosion caused by the construction site and discharges caused by other sources. This change also is intended to clarify that permittees are responsible only for stabilizing erosion in the areas of permitted outfalls rather than for streambank erosion caused by upstream sources.)

• adds a provision to the existing requirement to minimize the exposure of trash and other potential pollutants to precipitation (The new language provides that there is no obligation to minimize exposure where a material is not a source of pollutants – such as inert materials – or may contribute only negligible pollutants – such as steel members for construction.)

Controlling stormwater at construction sites can be a costly aspect of any development project. It is important that people involved in construction activities understand how these proposed rules may affect their operations and provide the EPA with feedback regarding any areas of concern or support. The EPA is accepting comments on the proposed rules until May 31.

The full text of the proposed rule is available at 78 Fed. Reg. 19434 and www.federalregister.gov/articles/2013/04/01/2013-07097/effluent-limitations-guidelines-and-standards-for-the-construction-and-development-point-source.

Patrick Rowe is a partner with Sussman Shank and is chairman of its environmental law group. Contact him at 503-243-1651 or at prowe@sussmanshank.com.

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A citizen suit is a lawsuit brought by a private citizen to enforce a law, usually one the person believes is being enforced inadequately. Such suits are particularly common in the environmental field. Many of these laws let ordinary citizens sue because of alleged violations. These suits can be brought against private parties and/or governmental entities for violating air, water, waste, endangered species and mining laws, among others.

Many environmental laws enable private plaintiffs to: challenge actions (e.g., construction of a facility or environmental effects of operations); seek a remedy for alleged ongoing or historic pollution; seek penalties (payable to the government); seek court-ordered injunctive relief (e.g., stop the alleged violation); and seek recovery of attorneys’ fees and costs. These lawsuits usually are not brought by individuals, but by environmental organizations.
Because governmental agencies cannot identify and pursue all environmental law violators, citizen suits can be useful, empowering anyone with an interest in environmental protection to demand that the law be enforced. But citizen suits also can overreach, making mountains out of molehills while causing defendants to spend substantial time and money in defense.
Generally, before a citizen suit concerning enforcement of a federal environmental law can be initiated, a notice of intent to file the lawsuit must be provided to: the facility believed to be violating the environmental requirements, the state in which the facility is located, and the Environmental Protection Agency.

This notice provision is important because it provides the alleged violator an opportunity to assess whether it is in fact violating any law, and, if so, to come into compliance before being facing a lawsuit. It also gives the regulatory agency the ability to assess whether it believes it should pursue an enforcement action for the alleged violations, thereby preventing the citizen from filing the suit. (Citizen suits are prohibited where the government is “diligently prosecuting” a case against the alleged violator for the alleged violations that are the subject of the would-be citizen suit).
In Oregon, there are a number of environmental organizations that bring citizen suits on a fairly regular basis. One of the most common suits seeks to enforce the federal Clean Water Act. Under the CWA, violations can lead to penalties up to $37,500 per day (payable to the U.S. Treasury).

The first step that an environmental organization takes when contemplating a citizen suit under the CWA is to send a “Sixty-day Notice of Violations of the Clean Water Act.” In this letter, the organization often contends that the recipient has violated or is violating the CWA by discharging pollutants and/or stormwater from a facility without (or in violation of) a National Pollutant Discharge Elimination System permit.

The typical letter references the penalty provision in the CWA that provides for civil penalties of up to $37,500 per day per violation. In the case of purported stormwater discharge violations, the organization often alleges that the recipient has violated the CWA on each day that it has rained 0.1 inches or more during any 24-hour period at any point during the last five years, and then attaches a list of dates on which it has rained that amount during this period.

Needless to say, given Oregon’s climate, the number of days on which it has rained 0.1 inches or more over a five-year period is in the hundreds. At $37,500 per day per violation, such a letter can cause the recipient considerable distress as they become concerned about having to pay potentially millions of dollars in penalties – as well as the plaintiff’s legal fees and costs, as well as their own.
Permitting individual plaintiffs to request civil penalties ranging in the millions of dollars obviously provides plaintiffs significant leverage over alleged violators. Providing penalty authority to citizen plaintiffs has been the subject of considerable debate.

Supporters argue that the penalty provision increases the efficacy of the citizen suit program because, among other reasons, private parties will initiate citizen suits only if they have enforcement powers equivalent to the government and that permitting citizens to seek penalties equivalent to what the government could seek ensures some consistency in enforcement and treats violators equally.

Opponents of allowing penalties in citizen suits argue that conferring this power on citizens invites abuse and threatens to undermine the traditional role of government, and in particular the law enforcement jurisdiction of the executive branch.
In many citizen suit settlements, the alleged violators avoid or minimize civil penalties by instead paying a sum of money to a third-party environmental organization (not related to the plaintiff) or to an otherwise environmentally beneficial project. This can be a “win-win” in that the defendant pays less than it might have in penalties, while the citizen plaintiff facilitates payment to an organization or project with a public interest.
Oftentimes, the best strategy when faced with the threat of a citizen suit is to attempt to address the contentious issues through discussions with the potential plaintiff and then employ creative problem solving before a lawsuit is filed.

There is no “one size fits all” strategy or a single set of solutions. The facts, parties and circumstances of each case must be examined individually. Some cases are ripe for settlement; however, for others, litigation is the best path.

Patrick Rowe is a partner with the law firm of Sussman Shank LLP. He is a member of its business litigation and environmental practice groups. Contact him at 503-227-1111 or prowe@sussmanshank.com.

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Wetlands filter and recharge drinking water, provide water storage for flood protection, protect our coasts from hurricanes and storms, and are habitat to many unique and beautiful plants, birds and other wildlife. Because of these important functions, dredging, filling or other physical alteration of wetlands is subject to a fairly complex set of regulations that seek to strike a balance between protection and use.

Typical activities in wetlands that are subject to regulation include: placement of fill material, alteration of stream banks or stream course, ditching and draining, excavation or dredging of material, bank stabilization, and in-water construction such as piers, stump removal (large land-clearing). There are certain steps that should be taken before taking on work in wetlands. Following is a brief overview of the permitting process.

The first step that developers and contractors must take is to determine if there is a wetland on the subject site. Under state and federal law, wetlands are defined as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances, do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Wetlands include swamps, marshes, bogs and similar areas. An area typically constitutes a wetland if the following three indicators are present:

1, wetland vegetation – majority of dominant plant species are adapted for life in saturated soil conditions;

2, “hydric soils” – saturated long enough to develop conditions that favor the growth of wetland vegetation; and

3, wetland hydrology – the area is saturated to the surface in most years (more than 50 percent) for more than 12.5 percent of the growing season; if water is present less than these amounts, it may or may not be a wetland, depending upon other parameters.

A specialist often is needed to determine whether a wetland exists and to delineate its boundaries. Determinations assess the presence or absence of a wetland within a given site. A delineation is a more detailed study that defines the boundaries of the wetland(s) within a site.

If the existence of a wetland has been confirmed, the next step is to determine which laws and regulations may apply.

Many Oregon cities and counties have ordinances restricting development in or near wetlands. When planning a project in wetlands or waterways, check first with the applicable local planning department.

Oregon law requires people who plan to remove or fill material in waters of the state, including wetlands, to obtain a permit from the Department of State Lands. A “removal-fill” permit is typically required for:

• projects requiring the removal or fill of at least 50 cubic yards of material in state waters;

• the removal or fill of any material from a stream designated as essential salmon habitat, regardless of the number of cubic yards removed; or

• the removal or fill of any material from the bed and banks of scenic waterways, regardless of the number of cubic yards affected.

There are a limited number of activities that are exempt from the requirement to obtain a removal-fill permit, including filling for the purpose of constructing, operating or maintaining a dam for which a permit has been issued, and removing or filling for forest management purposes.

There are three forms of removal-fill authorizations:

• individual permit – applies to projects with potentially significant impacts to waters;

• general authorization – provides expedited review process for certain categories of small projects; or

• emergency authorization – may be issued in limited circumstances where there is an immediate threat to public health, safety or substantial property.

In assessing whether to grant a removal-fill permit, the DSL will consider: public need and benefits; cost to the public if the project is not done; impact on public health and safety; compatibility with local land-use plan; whether there is unreasonable interference with navigation, fishing and public recreational use of the waters; whether the project will increase erosion or flooding; whether there are practical alternatives that have less impact to wetlands; and whether there is appropriate mitigation for all reasonably expected adverse impacts resulting from project development.

If there are practical alternatives that would pose little or no impact, the DSL will require that they be pursued. “Compensatory mitigation” is required for any unavoidable impacts, and refers to the creation, restoration or enhancement of wetlands to replace or “compensate” for the functions lost through the permitted alteration.

There are two sections of the Clean Water Act that are of particular significance to wetlands.

Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. The corps’ wetland program, however, does not apply to excavation. The corps follows certain guidelines when deciding whether to grant a permit.

Section 401 authorizes the EPA to prohibit an activity, including a construction project, if it can impact water quality or have other unacceptable environmental consequences. In most states, including Oregon, the EPA has delegated this authority to the state environmental agency.

These two regulatory activities are usually conducted cooperatively through use of a joint application form. The DSL administers a joint permit application with the corps; only one application is needed to obtain both permits. However, the application must be submitted to both agencies because projects require separate authorizations from both agencies before proceeding.

The corps issues general and individual Section 404 permits. There are two types of Section 404 general permits – regional permits and nationwide permits. Both are issued when the proposed activities are minor in scope with minimal projected impacts. Projects that exceed the limits for regional permits and nationwide permits generally require an individual permit. The corps’ review of applications for individual permits is more intense and requires additional detail regarding the proposed project’s design, scope and construction method.

The corps will not authorize activities in wetlands is there is a practicable alternative with less adverse impact on the wetlands. If there is no practicable alternative, wetland impacts that cannot be avoided or minimized require compensatory wetland mitigation.

The bottom line is that if a project involves dredging, filling or other physical alteration of wetlands, ensure that appropriate procedures are being followed and that proper permits in place.

Patrick Rowe is an attorney with the Portland law firm of Sussman Shank LLP and is a member of its environmental law group. Contact him at 503-227-1111 or prowe@sussmanshank.com.

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“Risk comes from not knowing what you’re doing.” – Warren Buffett

Many people seeking to purchase property for commercial purposes refuse to consider contaminated properties, because they are concerned about the risk of being held liable for the contamination, or about the time and expense that may be involved in addressing the legal and technical aspects of acquiring such properties. As a result, contaminated properties often are overlooked bargains.

In reality, armed with the proper knowledge, purchasers of contaminated properties will find that it is relatively painless to protect against liability under both federal and state law.

Federal law

In 2002, the Comprehensive Environmental Response Compensation and Liability Act was amended by Congress to encourage prospective purchasers to buy and redevelop Superfund and brownfield properties (i.e., properties known or suspected to be contaminated).

Prior to this amendment, purchasers of brownfields could be held liable for contamination related to the property unless they could establish that they had no reason to know the property was contaminated. This scenario created an obstacle to the redevelopment of properties that were known to be contaminated.

In order to avoid liability, the party seeking to purchase a known-contaminated property could negotiate a Prospective Purchaser Agreement with the EPA. (A PPA is a legally binding agreement between the government and a prospective purchaser of contaminated property that limits the purchaser’s liability for environmental cleanup).

The 2002 CERCLA amendments, however, allow purchasers to buy a contaminated property and avoid potential liability for existing contamination without the need for a PPA, by qualifying as a “bona fide prospective purchaser.” Therefore, in order to protect against potential federal liability for environmental contamination at a property, a purchaser needs to ensure that it qualifies as a bona fide prospective purchaser (BFPP).

A prospective purchaser of contaminated property can qualify as a BFPP by satisfying the criteria in the provision found in CERCLA statutes.

Pre-purchase criteria include:

• Pre-purchasing “all appropriate inquiry”
• Not affiliating with a liable party

Post-purchase criteria include:

• Taking reasonable steps with respect to hazardous substances on the property
• Complying with any land-use restrictions and institutional controls
• Cooperating with governmental authorities and persons conducting any cleanup
• Complying with information requests and administrative subpoenas

Of these criteria, “all appropriate inquiry” and “reasonable steps” typically pose the most significant concerns.

All appropriate inquiry refers to the requirements for assessing the environmental conditions of a property prior to its acquisition. In 2005, the EPA adopted rules governing what constitutes “all appropriate inquiry.” Although a full discussion of all appropriate inquiry is beyond the scope of this column, a key aspect includes a professional’s environmental site assessment, which includes:

• Interviews with past and present owners, operators and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility;
• Reviews of historical sources, such as chain-of-title documents, aerial photographs, building department records, and land-use records, to determine previous uses and occupancies of the real property since the property was first developed;
• Searches for recorded environmental cleanup liens against the facility that are filed under federal, state or local law;
• Reviews of federal, state, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records concerning contamination at or near the facility;
• Visual inspections of the facility and adjoining properties.

Additionally, a BFPP must take “reasonable steps” with regard to the hazardous substances on the property, including stopping a present release, preventing a future release and preventing exposure to a prior release. If such steps are not taken, the purchaser could lose its status as a BFPP.

The EPA believes that, in most cases, the 2002 CERCLA amendments make PPAs from the federal government unnecessary, because prospective purchasers need only take the steps necessary to qualify as a BFPP. Only under limited circumstances will the EPA still consider entering into a PPA.

In general, the EPA will consider a PPA when: 1, there is likely to be a significant windfall lien and the purchaser needs to resolve the lien prior to purchase, or 2, a PPA is necessary to ensure that the transaction will be completed and the project will provide significant public benefits.

Oregon state law

Unlike the EPA, the Oregon Department of Environmental Quality still regularly enters into PPAs. In order to qualify for a PPA, Oregon law requires that:

• The party is not currently liable for an existing release of a hazardous substance at the facility;
• Removal or remedial action is necessary;
• The proposed redevelopment or reuse of the facility will not contribute to or exacerbate existing contamination, increase health risks or interfere with remedial measures; and
• A substantial public benefit will result from the agreement.

(Under Oregon law, a substantial public benefit includes productive reuse of a vacant or abandoned industrial or commercial facility).

The process for applying for a PPA includes: 1, submitting a deposit (usually $2,500) to cover the costs of DEQ’s negotiating and preparing the PPA (DEQ returns any excess funds; if costs exceed the deposit, the applicant must further reimburse DEQ); 2, contacting DEQ to schedule an initial meeting; 3, participating in the initial meeting; 4, submitting an application, and 5, beginning negotiations.

After the PPA negotiations are completed, DEQ provides notice to the public. The notice is published in one or more newspapers in the community of the subject property.

After the PPA is finalized, the purchaser must properly record the PPA and related documents in the appropriate county office.

DEQ estimates that, in general, eight to 12 weeks are required to complete a PPA. There are, of course, exceptions to this general rule.

Bottom line

If you’re in the market to purchase a property, don’t pass over contaminated properties simply because of liability concerns. Liability can be managed by following the appropriate legal procedures.

Patrick Rowe is an attorney with the Portland law firm of Sussman Shank LLP and is a member of its environmental law group. Contact him at 503-227-1111 or prowe@sussmanshank.com.

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On Sept. 22, the U.S. Environmental Protection Agency adopted rules that will require the monitoring and reporting of greenhouse gas emissions in a program to begin Jan. 1, 2010. According to the EPA, the program will cover approximately 85 percent of the nation’s greenhouse gas emissions and apply to roughly 10,000 facilities.

Greenhouse gases, such as carbon dioxide, are produced by burning fossil fuels and via industrial and biological processes. The gases covered by the proposed rules are carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and other fluorinated gases including nitrogen trifluoride and hydrofluorinated ethers.

Under the rules, fossil fuels suppliers and industrial gas suppliers, manufacturers of heavy-duty and off-road vehicles and engines, and facilities that emit 25,000 metric tons or more per year of greenhouse gas emissions are required to submit annual reports to the EPA.

Examples of businesses covered by the rule include pulp and paper mills, petroleum refineries, solid waste landfills, cattle feedlots, and heavy-duty vehicle manufacturing facilities. The rule does not require control or reduction of greenhouse gas emissions, but does require that sources monitor and report emissions.

Stationary emissions from most general construction firms should be less than the required amount for reporting. However, companies involved with cement production, such as a cement manufacturing facility that uses kilns, would need to monitor and report emissions.

Fossil-fuel and industrial-gas suppliers and facilities that emit 25,000 metric tons or more per year must begin collecting information on Jan. 1, 2010, and submit annual emission reports starting March 31, 2011, for 2010 emissions. Vehicle and engine manufacturers must begin reporting carbon dioxide for model year 2011 and other greenhouse gases in subsequent model years.

Earlier this year Oregon adopted its own reporting rules for greenhouse gas emissions. These are more stringent than the EPA rules in some areas and less stringent in others. For example, Oregon’s reporting rules apply to facilities that have a Title V permit and emit as little as 2,500 metric tons of greenhouse gases per year. Oregon’s rules, however, do not cover the transportation sector.

The EPA’s rule does not preempt state rules such as that Oregon’s. As a result, certain entities may be required to report under Oregon’s reporting rules but not under the EPA rules while others may be required to report under the EPA rules but not under Oregon’s. The Oregon Department of Environmental Quality will assess whether to revise the Oregon rules to make them more consistent with the EPA rules or to adopt the EPA rules entirely.

Patrick Rowe is an attorney with the Portland law firm of Sussman Shank LLP and is a member of its litigation and environmental law groups. Contact him at 503-227-1111 or prowe@sussmanshank.com.

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The Oregon Department of Environmental Quality (DEQ) has issued proposed rules that will require a range of sources, both private and public, to report their greenhouse gas emissions to the agency.

The rules are needed in order to establish who is emitting greenhouse gases in Oregon and in what amounts. Once implemented, the rules will allow the State to track progress toward meeting greenhouse gas emission goals. On August 7, 2007, Gov. Ted Kulongoski signed into law House Bill 3543, which created a permanent global warming commission, and also established greenhouse gas reduction goals for the State of Oregon to arrest increasing emissions by 2010, reduce emissions to 10% below 1990 levels by 2020 and reduce emissions to 75% below 1990 levels by 2050.

The draft rules propose that, beginning in 2010, the following sources will report their greenhouse gas emissions from the preceding year to DEQ on an annual basis, regardless of the amount of their emissions:

• All Title V Air Quality Operating Permit holders (these permits are already held by major industrial sources of air pollution).

•  Certain Air Contaminant Discharge Permit holders (these permits are primarily held by minor sources of air contaminant emissions across a broad spectrum of categories, from natural gas and propane fired boilers to commercial bakeries, cement manufacturers, paper mills and sawmills).

The draft rules propose that, beginning in 2011, the following sources will report their greenhouse gas emissions from the preceding year to DEQ on an annual basis if they emit 2,500 metric tons or more per year:

• Solid waste disposal facilities.

• Wastewater treatment facilities with individual National Pollutant Discharge Elimination System permits.

• Electric generating units.

• Electricity and natural gas transmission and distribution systems (concerning transmission and distribution losses).

The draft rules are available on DEQ’s website. DEQ is accepting public comments regarding the proposed rules until May 16, 2008, and will be holding a series of public hearings around the state to discuss the rules. The first hearing is in Portland at the DEQ headquarters on April 24 at 2:45 p.m. The full hearing schedule can also be found on the DEQ website.

In a related development, in March 2008, the Climate Registry published its General Reporting Protocol for reporting greenhouse gas emissions. The Climate Registry was established in 2007 by numerous U.S. states (including Oregon), certain Canadian provinces, Mexican states, and Tribal Nations. As of March 2008, 39 U.S. states had joined. The purposes of the Climate Registry include establishing a uniform framework for quantifying and reporting greenhouse gas emissions and to serve as a central repository for verified greenhouse gas emission data.

Presently, participation in reporting greenhouse gas emissions to the Climate Registry is voluntary. However, it is anticipated that, as greenhouse gas reporting regulations are developed on a state, regional and/or federal level, reporting to the Climate Registry may be done in conjunction with, or in place of, reporting to governmental entities. For example, while DEQ’s proposed rules require reporting greenhouse gas emissions to DEQ, if a company has been voluntarily reporting those emissions to the Climate Registry, it is anticipated that the Climate Registry will be able to separate the mandatory DEQ reporting information and provide it to DEQ, or that DEQ will be able to obtain the data from the Climate Registry, so the company will not have to report to both DEQ and The Climate Registry.

More information regarding the Climate Registry, including a copy of the General Reporting Protocol can be found at www.theclimateregistry.org.

Patrick Rowe is an attorney with  Sussman Shank LLP, specializing in environmental litigation and renewable energy.  Contact him at 503-227-1111 or
prowe@sussmanshank.com.

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