T HE N ORTH C AROLINA C ENTRAL S CHOOL OF L AW J ANUARY 2014 V OLUME 1, ISSUE 1 E NVIRONMENTAL LAW REPORTER STAFF Editor-in-Chief Jourdan M. Cabe Editor Victoria Pugh When President Nixon established the Environmental Protec- tion Agency in 1970, the administration set into motion a movement to improve human health and ecosystems through environmental regulation and mechanics. On the heels of a cultural push for environmental governance, the Congress sought to reduce harms through the preservation of various areas of the environment. Regulations formed re- garding air, water, land, and toxins in order to foster environmental diversity, sustain- ability, and wellness in their respective areas. But with the establishment of a new ad- ministration came sweeping federal regulation with inherent implementation problems at both the federal and local state level. Specifically, the Clean Water Act of 1972 trou- bled state governments through forced regulation of impaired water bodies that fail to meet self-imposed standards. The process governs, among other things, the sources of pollution harming the water bodies, and attempts to constrain and limit those sources to bring the water levels up to safe, healthy standards. Although generally successful, the process is inherently incomplete. Efforts to fill the gaps are meeting resistance by the states, as they are reluctant to expend taxpayer money to cure an uncertain problem where pollution origins are inexact and muddled. This article draws on the prevalence of nonpoint sources of pollution in water bodies, particularly storm water pollutants, and assesses the failure of surrogacy use at the state level employing it as a new pollutant measurement. On May 3, 2008, with less than a quarter mile left and the finish line in sight, Eight Belles was narrowly passed by ultimate winner Big Brown at the 134th Kentucky Derby and resigned to finish in 2nd place . One of only thirty-nine fillies to have ever run the race,  Eight Belles had recently made history by being the first filly to ever win the Martha Washington Stakes in Oaklawn Park . Young and talented, both owner Rick Porter and trainer Larry Jones had aspirations that this blossoming steed would do well . Just after crossing the wire, Eight Belles collapsed on the track, throwing jockey Garbiel Saez into the dirt ,and sending the Churchill Downs equine veterinary team scram- bling to assess what had happened . The filly had broken the cannon and sesamoid bones in both her front legs and could not stand . A hush fell across the crowd as veterinary staffers attempted to comfort the horse. The scene proved too much for some, as trainer Larry Jones, in tears, watched and asked God why his filly had been taken . Ultimately, all efforts to save the life of Eight Belles proved for naught. The horse was in substantial pain and the injury deemed terminal. In front of 157,770 M. DEREK MARTIN A HORSE WITH NO NAME PERFORMANCE ENHANCING DRUGS IN HORSE RACING, THE STATE ADMINISTERED SYSTEM, AND PROSPECTS FOR FUTURE REGULATION JOURDAN M. CABE CONTINUED ON PAGE 7 CONTINUED ON PAGE 4 U SING W ATER F LOW IN TMDL A SSESSMENTS ELS OFFICERS P RESIDENT H AYES J ERNIGAN V ICE P RESIDENT C AROLINA S TEPHENSON S ECRETARY J OURDAN M. C ABE T REASURER J IA J AMAL C OMMUNITY S ERVICE C HAIR M EREDITH D ARLINGTON On February 7th, 2014, ELS will be hosting a symposium titled “Preparing for Fracking: Lessons in Regulation and Litigation.” For more information, please see the back page.
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THE NORTH CAROLINA CENTRAL SCHOOL OF LAW
JANUARY 2014 VOLUME 1, ISSUE 1
ENVIRONMENTAL LAW REPORTER
Jourdan M. Cabe
When President Nixon established the Environmental Protec-
tion Agency in 1970, the administration set into motion a movement to improve human health and ecosystems through environmental regulation and mechanics. On the heels of a cultural push for environmental governance, the Congress sought to reduce harms through the preservation of various areas of the environment. Regulations formed re-garding air, water, land, and toxins in order to foster environmental diversity, sustain-ability, and wellness in their respective areas. But with the establishment of a new ad-ministration came sweeping federal regulation with inherent implementation problems at both the federal and local state level. Specifically, the Clean Water Act of 1972 trou-bled state governments through forced regulation of impaired water bodies that fail to meet self-imposed standards. The process governs, among other things, the sources of pollution harming the water bodies, and attempts to constrain and limit those sources to bring the water levels up to safe, healthy standards. Although generally successful, the process is inherently incomplete. Efforts to fill the gaps are meeting resistance by the states, as they are reluctant to expend taxpayer money to cure an uncertain problem where pollution origins are inexact and muddled. This article draws on the prevalence of nonpoint sources of pollution in water bodies, particularly storm water pollutants, and assesses the failure of surrogacy use at the state level employing it as a new pollutant measurement.
On May 3, 2008, with less than a quarter mile left and the finish
line in sight, Eight Belles was narrowly passed by ultimate winner Big Brown at the 134th Kentucky Derby and resigned to finish in 2nd place . One of only thirty-nine fillies to have ever run the race,  Eight Belles had recently made history by being the first filly to ever win the Martha Washington Stakes in Oaklawn Park . Young and talented, both owner Rick Porter and trainer Larry Jones had aspirations that this blossoming steed would do well . Just after crossing the wire, Eight Belles collapsed on the track, throwing jockey Garbiel Saez into the dirt ,and sending the Churchill Downs equine veterinary team scram-bling to assess what had happened . The filly had broken the cannon and sesamoid bones in both her front legs and could not stand . A hush fell across the crowd as veterinary staffers attempted to comfort the horse. The scene proved too much for some, as trainer Larry Jones, in tears, watched and asked God why his filly had been taken . Ultimately, all efforts to save the life of Eight Belles proved for naught. The horse was in substantial pain and the injury deemed terminal. In front of 157,770
M. DEREK MARTIN
A HORSE WITH NO NAME
PERFORMANCE ENHANCING DRUGS IN HORSE RACING, THE STATE
ADMINISTERED SYSTEM, AND PROSPECTS FOR FUTURE REGULATION
JOURDAN M. CABE
CONTINUED ON PAGE 7
CONTINUED ON PAGE 4
USING WATER FLOW IN TMDL ASSESSMENTS
JOURDAN M. CABE
J IA JAMAL
On February 7th, 2014, ELS will be hosting a s y m p o s i u m t i t l e d “Preparing for Fracking: Lessons in Regulation and Litigation.” For more information, please see the back page.
Environmental protection is a very important topic within politics and legislation contemporarily.
During campaign season, proposals to tackle things such as global warming, land degradation, and various types of pollu-tion are all brought to the forefront of discussion. The meat industry is rarely ever mentioned in conjunction with the above-mentioned global catastrophes. A United Nations report explains that globally the livestock sector is “one of the two or three most significant contributors to the most serious environmental problems,” including climate change, air
and water pollution, land degradation, and water loss . This summary will delve into a few of the many legal and policy issues surrounding the meat industry and its effects on our environ-ment.
Long gone are the days of the small livestock, swine, or free-range poultry operations. The ani-mals are cramped into tiny spaces, lacking vegetation, injected with hormones, steroids, and antibiotics until they are large enough to make the most profit . The animals can become sick and diseased leading to a host of other health problems . The operations are called Concen-trated Animal Feeding Operations (“CAFOs”) . More than 1.7 billion animals are used in live-stock production worldwide; an amount of livestock that covers about one-fourth of the Earth’s land.
The Environmental Protection Agency (“EPA”) has focused a lot of attention lately on regulating CAFOs, because of the harmful toxins they generate . The manure and wash off from these
operations can pose a grave environmental and health risk . In order to comply with EPA regulation, CAFOs use what is known as an anaerobic lagoon . An anaerobic lagoon is a process by which the manure is washed into an earthen basin, and then undergoes the process of anaerobic respiration . Anaerobic respiration is a process that converts vola-tile organic compounds from the manure into nitrous oxide, carbon dioxide, and methane, all of which are greenhouse gases . Not only do the lagoons pose problems with gas emission, they can also pose a problem if the lagoon overflows and leaches into the surrounding land and groundwater . This overflow can introduce antibiotics, bacteria, heavy metals, and pesticides into land and groundwater . North Carolina banned the building of new anaerobic lagoons in 1999, and reconfirmed this ban in 2007 . However, they did not shut down the pre-existing lagoons, thus many still exist .
The EPA introduced the Clean Water Act (“CWA”) in 1972 to try and combat some of the harmful effects the runoff and pollution could cause to our environment and health . However, even with the implementation of this legislation, the problem of pollutants from the meat industry continues to rise . Enforcement of the Clean Water Act has been lacking since its implementation. As an illustration, the State of Nebraska, U.S. Department of Justice, and the EPA partnered together to bring a multi-million dollar suit against the U.S.’s largest beef producer for its violation of the CWA . Unfortunately, cases like this are far and few between with the implementation of anti-whistleblower legislation. In April 2013, North Carolina State Senate introduced the “Commerce Protection Act” its own version of the anti-whistleblower legislation .
Land degradation and green house gas emission are major environmental concern associated with CAFOs . The two factors together create a volatile combination. The gases emitted from cattle coupled with the land degradation lead to an over abundance of greenhouse gases in the atmosphere . Vegetation and soil have a natural way of purify-ing the air we breathe and the air that goes into our atmosphere . It is the natural cycle of things. With more and more land being cleared to meet the demand from the cattle, swine, and poultry industry, less vegetation and soil is available to clean the air therefore more greenhouse gases are emitted into the atmosphere .
Do the ‘benefits’ of over consumption of meat products, outweigh the negative effects on our environment? Most would agree they do not. We must remember we are “setting the table” for the world our children will live in with every bite we take.
THE MEAT INDUSTRY : SETTING THE TABLE FOR OUR CHILDREN ’S FUTURE
PAGE 2 ENVIRONMENTAL LAW REPORTER
“GLOBALLY , THE
SECTOR IS ONE
OF THE MOST…
OF THE MOST
PROBLEMS . ”
REVIEWING COALITION FOR RESPONSIBLE REGULATION , INC . V . EPA
PAGE 3 VOLUME 1 , ISSUE 1
The topic of greenhouse
gases has been widely documented and studied. These gases act “like the ceiling of a greenhouse, trapping solar energy and re-tarding the escape of reflected heat .” Moreover, “a wide vari-ety of modern human activities result in greenhouse gas emis-sions; cars, power plants, and industrial sites all release significant amounts of these heat trapping gases .” In recent years, “a well-documented rise in global temperatures has coincided with a sig-nificant increase in the concentration of greenhouse gases in the atmosphere .” Recently, the topic of greenhouse gases has resurfaced in the judicial arena. This is evidenced by the Supreme Court’s recent grant of certiorari in the case of Coalition for Responsible Regulation Inc. v. Environmental Protection Agency. Through this grant, the Supreme Court has agreed to review an administrative policy requiring new power plants and big polluting facilities to apply for permits to emit greenhouse gases . “To get these permits, which have been required since 2011, companies would have to use pollution controls or otherwise reduce greenhouse gases from their operations .” In 2007, the Supreme Court clarified greenhouse gases as an air pollutant subject to regulation under the Clean Air Act . This decision led to a series of greenhouse related rules and
regulations. Initially, the Environmental Protection Agency (“EPA”) imposed limits on greenhouse gas emissions from motor vehicles . Subsequently, the EPA moved to impose permit re-quirements on stationary sources like power plants that emitted such gases . It is this decision that Petitioners in Coalition for Responsible Regulation Inc. are now challenging. The Petitioners first challenged the EPA’s decision in the U.S. Court of Appeals for the District of Columbia. The Clean Air Act requires permits for all facilities that emit a certain amount of any air pollutant per year . Furthermore, the EPA has long interpreted the phrase “any air pollutant” to mean any air pollutant regulated under the Clean Air Act . However, Peti-tioners argued that the EPA should have interpreted “any air pol-lutant” in a more limited manner to mean only pollutants that have health-based ambient air quality standards . Subse-quently, the Court held that the EPA’s interpretation was cor-rect. In reaching its decision the Court looked to the plain lan-guage of the Clean Air Act. In addition, the Court also looked to the decision in Massachusetts v. EPA which classified greenhouse gases as an air pollutant subject to regulation under the Clean Air Act . The petitioners filed a writ of certiorari which the Su-preme Court recently granted. However, the case is not expected to be taken up by the Supreme Court before early next year.
A case out of the Third Circuit, Bell v. Cheswick, recently held that the Clean
Air Act (“CAA”) does not preempt state statutory or common law claims for private property damages or injunctive relief . This is a significant holding for citizens who have suffered property damage from nearby power plants. The U.S. Supreme Court has already reached a similar conclusion that permits do not preempt the Clean Water Act (“CWA”) . The Third Cir-cuit has now extended that holding to the CAA. In Cheswick, property owners in a class action brought suit against a coal power plant alleging nuisance, negligence and recklessness, trespass and strict liability for a coal power plant's damage to surrounding property in Pennsylvania . The coal plant emitted "ash" that covered plaintiff's property and left them "prisoners in their own homes" by constantly having to clean it . The defendant argued that all of the activities chal-lenged by plaintiffs are regulated by agency permits and there-fore, those agencies must be afforded deference . Plaintiffs argued that the coal plant's permit does not allow them to dam-age private property . The trial court read the plaintiff's complaint as chal-lenging the emission's standards and dismissed the complaint on the basis that a ruling would require judicial interference into
agency regulation . The Third Circuit reversed, noting that the CAA acts as a regulatory "floor" not a "ceiling," and because Congress expressly reserved the rights of states and citizens to bring state and common law claims, there was neither preemp-tion nor a political question . The Circuit court relied on the Supreme Court's ruling in International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987), which held that the Clean Water Act did not preempt a state nuisance claim because the CWA preserved the right of states to enact stricter standards, including state's rights to impose higher common law as well as statutory restrictions . The Third Circuit concluded that the CWA and CAA are substantially similar and used the same reasoning as the Supreme Court to conclude that the CAA's citizen suit provision and provisions preserving states rights to regulate emissions did not prevent a citizen from bringing claims under state common law . The holding in Cheswick is significant for property own-ers surrounding power plants whose emissions are polluting their land. The case removes a defense previously available to power plants that their compliance with a permit system preempts any statutory or common law claims for damage to private property. If this case is followed by other circuits, many more complaints against power companies can be expected to pop up.
BELL V . CHESWICK : A V ICTORY FOR PRIVATE PROPERTY OWNERS
PAGE 4 ENVIRONMENTAL LAW REPORTER
UNDERSTANDING COAL ASH ; A SUMMARY
Coal combustion waste, the second-largest industrial waste stream across the country, is the byproduct of coal-
fired power plants used to generate electricity . Coal ash pollution contains high levels of toxic heavy metals, such as arsenic, lead, mercury, and other dangerous pollutants . The nation’s power plants produce more than 130 million tons of ash per year, which in turn is emptied into the backyards of power plants, open-air pits, and precarious surface waste ponds . “Many of these sites lack ade-quate safeguards, leaving nearby communities at risk from potential large-scale disasters .” The toxic contaminants of coal ash are leaching out of the ash disposal sites into the air, land, and human drinking water, posing a threat to human health and the environment . Children and adults are subject to a range of potential health effects associated with the heavy metal exposure the coal ash leaves . Each individual pollutant in coal ash has its own poten-tial health effects. Arsenic, however, is known to be one of the most common and dangerous toxins found in coal ash . The Environmental Protection Agency (“EPA”) reported that those who drink water polluted by leaking coal ash have a one in fifty chance of increasing their risk of cancer from
arsenic contaminated water . Coal ash can also cause neurological damage, lung and heart prob-lems, stomach ailments, and premature mortality . Given the large number of toxic substances present in coal ash, multiple expo-sures and overlapping effects are likely to exist; inadvertently causing great difficulty in discovering which toxic substance caused the problem . Coal ash also has a detrimental and severe impact on wildlife. Every year, coal fired power plants dump millions of tons of toxic metals into waterways, conse-quently resulting in the death of fish and wildlife . The concentrated pollutants in coal ash cause life-threatening deformities in fish, amphibians, invertebrates and other organisms living in the polluted waterways . Eventually, toxic effects in animals will work their way up the food chain and impact humans .
Though the EPA has long recognized the potential hazards from coal ash, they have never successfully implemented federal regulations to ensure its safe disposal . In 2008 a spill at the TVA Kingston Fossil Plant in Tennessee led to the EPA proposing the first federal regulations for coal ash disposal . The EPA proposed two options to regulate coal ash disposal. Under the first option, the EPA would classify the coal ash as “hazardous,” rendering strict standards in the disposal of the waste . The other option would deem coal ash “non-hazardous,” thus subjecting it to less stringent national standards that amount regulation to individual states . Nevertheless, “EPA’s proposed standards for safe disposal, including a plan to close down ash ponds within five years, have gone no-where .” In 2012, environmental and public health groups, led by Earthjustice, filed a lawsuit to force the EPA to finalize public health safeguards against toxic coal ash . On October 29, 2013, a federal judge sided with the environmental and public health groups . The federal judge ordered the EPA to provide a plan finalizing pending federal coal ash regulations proposed earlier within the next sixty days . By placing regulations on the disposal of coal ash, the government will prevent future contaminations thus re-moving the harmful effects associated with it .
PLANTS GENERATE OVER
140 MILLION TONS OF
TOXIC COAL ASH EVERY
YEAR– ENOUGH TO FILL
OVER 426,000 OLYM-
PIC SWIMMING POOLS .
patrons in attendance, the largest single draw in Derby history, Eight Belles was euthanized on the track to become the first fatality in the his-
tory of the Kentucky Derby .
The image of the big black filly lying in a heap beneath the famous Twin Spires of Churchill Downs struck a raw public nerve, and a link between her shattered front legs and drug abuse in horse racing was instantaneous. The death of Eight Belles has since shone a light on the romanticized façade of thoroughbred racing to reveal a world of injuries, overtraining, and drug abuse. This article seeks to assess the history of drug use in horse racing from its inception and growth throughout the twentieth century, to the implementation of present state regulation, and a brief discussion of the prospect for a national regulatory system. The history of horse racing as a form of entertainment in the United States has existed since the late 1600s . The oldest permanent racetrack in America was initially set up just outside of New York City on Long Island by British colonists in 1665 . However, the establishment of pari-mutuel gambling as a compliment in the 1870s popularized it as a form of recreation and hastened its introduction across the country . Pari-mutuel gambling is a betting system of wagering on a horse race where the holders of winning tickets divide the total amount of money amassed on a single race, less deductions for tax and racetrack expenses . Created by
A HORSE WITH NO NAME , CONTINUED . . .
CONTINUED ON NEXT PAGE
PAGE 5 VOLUME 1 , ISSUE 1
Pierre Oller as an alternative to bookmaking, the alleged benefit of the pari-mutuel system was that the racetrack itself did not en-gage in gambling (commonly regarded as a nefarious activity), but would rather accept a customer’s money, dispense them with a printed ticket, and keep an orderly accounting of financial activities . There were fewer violent disputes over payouts, local politicians were contented over the tax earnings, and citizens from all socioeconomic strata were entertained with a day at the track . Complementing the rise of horse racing in America was the establishment of the American Jockey Club . The Jockey Club was formed with the ambition of increasing public opinion of horse racing as a sport and regulating the gambling operations that were beginning to take root throughout the industry . The organization sponsored some of the most popular races of today including the first Belmont Stakes, Breeders’ Cup, and Kentucky Derby; and made horse racing fashionable across America during its transitional infantile stage . However, like all things involving money, local interests about gambling revenue from racing operations began to pry control from the American Jockey Club . Soon the agency was replaced with various state level organi-zations, which continue to be the primary regulators of gambling today . There are over thirty states that permit horse racing in some form . Of these, the three that collect the most revenue are California, New York, and Kentucky. The popularity of horse racing in California may be attributable to a multitude of factors, including its moderate climate and proximity to Hollywood. The “Golden State” vests jurisdiction over dealings with horse races, wagering, and all track related matters with the California Horse Racing Board (CHRB) . The CHRB is also responsible for issuing penalties to owners and trainers if any horse tests positive for a banned substance or their metabolites. Punishments are en-tirely civil and range from a 1-year ban and a $25,000 fine to a lifetime license revocation and a $100,000 fine . Testing for prohibited substances is performed at the Kenneth Maddy Equine Analytical Laboratory on behalf of the CHRB . In 2012 the State of New York merged its Racing and Wagering Board with the New York Lottery Commission to form The New York State Gaming Commission. The Gaming Commission is a conglomerate outfit which oversees horse racing, lotter-ies, charitable giving, casino gaming, and video lottery terminals all over New York . The penalties for animals which test posi-tive for performance altering substances range from a minimum 60-day license suspension and $1,000 fine to a maximum license revocation and a $5,000 fine . These consequences are not as severe as other states, but New York is unique in the regard that the State government takes an active hand in the regulation of horse racing activi-ties. The Kentucky Horse Racing Commission (KHRC) was created in order to regulate the conduct of horse racing and pari-mutuel wagering within the Commonwealth of Kentucky. If a horse is tested after a race and returns positive for banned drug or medications, the level and severity of the disciplinary meas-ure will depend on whether the substance was a Class A, B, C, or D drug . Class A drugs have no le-gitimate therapeutic use in the equine industry and have not been approved for use in horses by the U.S. Food and Drug Administration . They include drugs of abuse such as methamphetamine and cocaine . An owner or trainer who incurs a violation involving Class A narcotics may receive a five-year racing suspension and a $50,000 fine. Class D drugs include largely innocuous medications including such as the heart medications warfarin and anisindione . Multiple violations involving a Class D drug may result in a 5 day suspension of racing privileges and a $250 fine . Testing for performance altering substances and recommendations of regulatory policies are carried out by the Kentucky Equine Drug Research Council, an office within the KHRC . In addition to the state-partial laboratories, an independent organization has recently emerged to provide an autonomous perspective on the state of horse racing. Formed in 2001 in Lexington, Kentucky, the Racing Medication and Test Consortium (RMTC) has established itself by providing research, testing for prohibited substances, and studies on the long-term physiological effects of racing on horses . In 2008 the RMTC launched multi-part testing initiative targeted at developing testing standards similar to the World Anti-Doping Agency . More recently in 2013 the RMTC acted to convince eight states in the Northeast and Mid-Atlantic (New York, New Jersey, Pennsylvania, Massachusetts, Delaware, Maryland, Virginia, and West Virginia) to adopt uniform medication rules by the end of 2013 and early 2014 . Other sports have also wrestled with performance enhancing agents. Notable examples include Major League Baseball (MLB) and the U.S. Olympic Committee (USOC). MLB has a stated policy to deter and end the use of anabolic steroids and other illegal drugs of abuse. Although there are twenty-nine different teams in the United States and one in Canada, the MLB accom-plishes this objective by unifying the rules between all ball clubs and the respective players who compete . Any player or team found in violation will be subject to discipline, suspension, or fines issues by a single organization: the Office of the Commissioner of MLB. During the 17 days the Olympic Games are in operation, the International Olympic Committee (IOC) and the World-Anti-Doping Agency (WADA) are responsible for testing athletes from countries across the globe suspected of engaging in banned substances . Outside this period, the US Olympic Committee tests athletes who will represent the
“THE IMAGE OF THE
BIG BLACK FILYY
LYING IN A HEAP
BEANTH THE FAMOUS
TWIN SPRIES OF
STRUCK A RAW PUBLIC
NERVE , AND A LINK
LEGS AND DRUG ABUSE
IN HORSE RACING WAS
INSTANTANEOUS . ”
CONTINUED ON NEXT PAGE
In 2011, Japan was shaken by a natural disaster that left large cities rebuilding the wreckage . The
most prominent issue that arose was the disaster at the Fukushima Daiichi power plant . The earthquake caused a leak that was rated a seven on the seven-point scale called the International Nuclear and Radiological Event Scale . This was the first radiation event to be rated a seven since the Chernobyl incident . Since then, news about the incident has dwindled and seem-ingly been forgotten. Over the past two years the radiation rating fell to one, until August of 2013 when it was bumped up to a three as more storage tanks began to leak . Today, the plant is still leaking 300 tons of radioactive waste into the ocean and 300 tons of waste into the ground every day . The cleanup from the meltdown is expected to last several decades . The question at hand is what the impact of this disaster will have on the regulations for Nuclear Power plants in the United States. Serious questions arise as to whether power plants in the US would be able to contain a similar disaster. Japan’s Chief Cabinet Secretary, Yoshihide Suga, worries that the accident may be “beyond the plant operator’s ability to cope .” NRA Chairman Shunichi Tanaka stated “mishaps keep happening one after the other… we have to look into how we can reduce the risks and how to prevent it from becoming a fatal or serious incident .” This demonstrates that the incident is still not under control, and brings up concerns as to whether power plants across the globe would be prepared if a disaster like this were to happen again. The United States Nuclear Regulatory Commission approved a three tiered recommendation program to prevent an event like Fukushima from becoming a fatal and serious disaster . These recommendations begin with taking pre-emptive measures to ensure nuclear power plants can withstand “unlikely but harmful events .” The three tiered framework is aimed towards preventing substantial damage in the event that a natural disaster threatens the safety of the power plants . For ex-ample, as we learned from the Fukushima disaster, nuclear power plants require constant power to maintain stability, so the NRC requires that all power plants have several back up plans in the event of a blackout . The ongoing problem of leaking storage tanks at the Fukushima location, has taught the NRC that it is necessary to ensure containment systems are properly reinforced . Other measures included in the framework involve recommendations on staffing and emergency response procedures, such as training and drills . The NRC is also considering the chances of other external hazards other than earthquakes and flooding as well as seismic reevaluations . Even with these measures taken, the great difficulty that Japan has in fixing the Fukushima problem, creates a real concern as to the whether a US power plant could handle a similar disaster. The NRC was quoted saying, that nuclear power “[does] note pose an imminent risk” and that a similar event is “unlikely to occur in the United States .” Although, following this statement, the NRC began implementing their new three tiered recommendations; we still do not know how the U.S. would handle a nuclear meltdown, nor would we like to find out.
THE U.S. NUCLEAR REGULATORY COMMISSION ’S RESPONSE TO THE FUKUSHIMA DISASTER
United States during competition. The USOC is notable because they traditionally test athletes less frequently than other countries
and have been encouraged to follow the WADA’s rules and procedures .
It was Anton Chekov who observed that a thirst for power will take an upper hand over both apprehension and compassion for the grief of others . Such an observation may be witnessed in the tarnish recently earned by the horse racing industry. Performance enhancing narcotics have sullied one of America’s oldest recreational pastimes, and the seem-ingly simple amusement of racing has become increasingly complicated to regulate. Champions have perished, competitors fallen, and the field as a whole befouled in a sea of corruption and vanity. However, there is prospect of a brighter future. If horse racing were to rightfully earn its appellation as the Sport of Kings, measures should be taken to ensure such a handle is gained meritedly. The present system of regulation lacks con-siderable uniformity; the penalties for violations vary from state to state and if an offender is apprehended in one locale noth-ing prevents him from packing up shop to relocate in a different area. As a result, it would be advantageous to implement an unvarying organization to oversee the rule and policy making of horse racing nationwide. Such structures currently exist in other venues, such as Major League Baseball and the Olym-pics. The Racing Medication and Test Consortium is a step in the right direction, but because horse racing exists in over 30 states across the nation, further planning and homogeneity is necessary. If a national system of regulation and a single com-prehensive set of rules for permissible substances were instituted, the sport would be able to operate more resourcefully and effectively.
A HORSE WITH NO NAME , CONTINUED
PAGE 6 ENVIRONMENTAL LAW REPORTER
PAGE 7 VOLUME 1 , ISSUE 1
The Congress passed the Clean Water Act (“CWA”) in 1972 in an effort to establish a national regulatory structure re-
garding water quality standards  .One of the several goals of the Act includes the emission regulations of toxic substances and other pollutants into waters which have a significant nexus to navigable waters . As a compliance mechanism, the Act explicitly bans the discharge of pollutants from point and some nonpoint sources without a permit into said navigable waters . Permits are obtained and managed by application through the National Pollutant Discharge Elimination System permit program (“NPDES”) . The goal of the permit system is to encourage producers and manufacturers to use best managements practices to prevent the accu-mulation of named pollutants in significant amounts in water bodies . Pollutants regulated under this permit generally include fertilizers, insecticides, oil, grease, sediment, and animal waste . The power to formulate and regulate water quality is allocated heavily to the states: the states set their own water quality standards (“WQS”) and the Environmental Protection Agency (“EPA”) approves or disapproves their determinations . State WQS’ typically assess specific water issues, often times in regard to certain water bodies with health issues caused by very particular pollut-ants . In these assessments, states must identify uses of the water to be both achieved and protected, as well as the criteria stan-dards to be implemented . States also consider such things as the use and value of the water, its ecosystem and habitat, and poten-tial recreational, industrial, and agricultural usage when making water quality standards . Further intertwined in the assessment is the suitability of water, as named above, in conjunction with the physical, chemical, and biological makeup of the body, as well any geographical and economic considerations . Despite state efforts to ensure water health, water bodies frequently fall short of meeting WQS because of excessive pollu-tion levels . Bodies incapable of meeting state-implemented standards are required under the CWA to be placed on the federal “impaired water bodies” list, governed under 303(d) of the CWA . The applicable text of 303(d) is as follows:
Each State shall identify those waters within its boundaries for which the effluent limitations… of this title are not stringent enough to implement any water quality standards applicable to such waters… Each State shall estab-lish… the total maximum daily load… [each] load shall be establish at a level necessary to implement the applica-ble water quality standards .
Water bodies placed on the 303(d) list requires states to revitalize the water’s health through curative plans known as Total Maximum Daily Loads (“TMDLs”) . TMDLs are mathematical calculations of the maximum amount of pollutant a water body can receive and still meet state WQS . Once determined as sick, pollutant levels are continually measured in impaired water bodies through scientific monitoring which “[identifies] existing or emerging water quality problems and [determines] whether cur-rent pollution control mechanisms are effective in complying with the regulations” . The broad goal of a TMDL program is to improve overall water quality and health, where “health” is measured by its capac-ity to meet water quality standards . Specific TMDL goals are achievable through the regulation of pollution discharged into a given water body, either through point or nonpoint sources . Point sources are typically easier to measure, identify, and fix than their counterpart through regulation known as waste load allocation (“WLA”) . These allocations are defined as “the portion of a receiving water’s loading capacity that is allocated to one of its existing or future point sources of pollution… [constituting] a type of water quality-based effluent limitation” . A load capacity is merely the largest amount of pollutant a water body can receive with-out violating water quality standards . Nonpoint sources, to the contrary, pose significant problems for the state and federal government . Unlike point source pollution, nonpoint pollution has no readily identifiable origin and instead is a combination of several diffuse sources, such as rainfall and snowmelt . Water attributable to nonpoint sources moves over and across the ground collecting and carrying away pollut-ants, later depositing the pollutants into near-by water bodies . The identification trouble accompanying this source of pollution is multi-faceted and the most glaring problem for water pollution in the nation . States report that nonpoint source pollution is the leading remaining cause of water quality problems, as the source of pollutants is not always identifiable or fully assessable . Recent studies show that as much as fifty percent (50%) of the nation’s polluted water bodies are considered impaired due to non-point source runoff . The most prevalent source of nonpoint pollution increased through runoff is sediment collected and carried away from agricultural fields . But with such obvious, pressing issues related directly to nonpoint source pollution, the civilian presumption would be that the states, in collaboration with the EPA, would promulgate implementation plans to correct the harm and prevent any future envi-ronmental impairment. To the contrary, however, nonpoint source regulation has been sparse and inadequate, and is the most un-regulated source of pollution in the nation . Hardships aside, federal, state, and local governments should have a vested interest in both the curing and prevention of nonpoint source pollution. A novel and underdeveloped assessment new to the environmental
GOING WITH THE FLOW, CONTINUED
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regulatory world is the use of storm water runoff flow as a substitute for typical measures of pollutants of concern . In recent years various EPA regions, in cooperation with some states, have attempted to implement this new practice in an effort to find a solu-tion to a prominent water problem . The results are mixed ; heavily dependent on several extraneous factors, such as eco-nomic incentives, scientific capabilities, and state willingness . Although the future of storm water surrogacy is in question based upon preliminary assessments, its importance is resounding and must be emphasized as a preeminent solution to water quality impair-ment . Section 303(d) of the Clean Water Act requires states to develop a list for waters not meeting applicable water quality stan-dards, including designated uses . Once the list is approved and finalized, states are to develop and implement a TMDL for each listed water body, subject to the EPA’s scrutiny . If the state fails to take action regarding the impaired water body, the EPA is allowed to mandate their own TMDL . The TMDL will detail a treatment plan and specify the particular pollutant load to reduce levels to an acceptable amount if calculations determine that the level of pollutant exceeds the WQS . The non-complying state is then required to implement the federally mandated TMDL with the help, generally, of the EPA . The methods used to remedy failing water bodies from point source pollution are well-known, as point discharge is generally apparent and identifiable . In contrast, nonpoint pollutant sources are, like the name suggests, relatively unascertainable . In fact, the difficulties in identifying the origin of nonpoint discharge prevented Congress from initially requiring nonpoint source regula-tion in the original passing of the CWA . In response to early mounting environmental pressures regarding storm water, the Con-gress passed the Water Quality Act in 1987 (“WQA”) requiring industrial storm water dischargers (construction and industrial) and municipal storm sewer systems to obtain a NPDES permit . These permits function in identical fashion as those required for point discharge . Nonpoint source permits, however, only regulate storm water discharge from industrial facilities [emphasis added] . Despite the inherent strides of the EPA to control nonpoint pollutants, the federal government is still without regulatory power to monitor and control all storm water runoff . Control of runoff is strictly limited to the few categories of named pollut-ants under the CWA . Regulatory power does not extend to runoff derivative of agricultural or urban sources because runoff, as water flow alone, is not defined as a pollutant [emphasis added] . The ability of the EPA in this regard is limited and grossly incom-prehensive, hence the EPA’s desire to expand the regulation encompassing storm water flow . EPA defended their right to use surrogacy measures under the CWA, but admitted storm water flow was not a pollutant of concern under the Act . The EPA has attempted, through practice and litigation, to creatively fit the storm water flow surrogacy into the CWA mold . The statute the EPA uses under the CWA to push storm water flow surrogacy states that, “TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measures… the TMDL process provides for nonpoint source control tradeoffs [emphasis added] .” The EPA contends that the variation in choice of implementation of TMDLs supports reliance on a water flow as a reasonable surrogate, as long as it ensures attainment with water quality standards . In 1998 the EPA, in collaboration with the Federal Advisory Committee on the TMDL Program and the National Advisory Council for Environmental Policy and Technology (“NACEPT”), formulated a lengthy report describing the necessary components of TMDLs, documenting the current state of TMDL formation, and discussing the need for change in control mechanisms for nonpoint source regulation . The report pushes the use of surrogacy in a variety of fashions, including the use of flow measurements as a substitute for pollutants-of-concern assessments, and suggests that surrogacy is the best available option for states with mysteriously impaired water bodies . When water impairments cannot be directly tied to a single, specific pollutant or numeric criterion is uncertain, the report suggests:
When the impairment is tied to a pollutant for which a numeric criterion is not possible, or where the impairment is identified but cannot be attributed to a single traditional pollutant, the state should try to identify another (surrogate) environmental indicator that can be used to develop a quantified TMDL, using numeric analytical tech-niques where they are available, and best professional judgment where they are not… If they are used, surrogate environmental indicators should be clearly related to the water quality standard that the TMDL is designed to achieve .
The report also generalized that the goal of the TMDL program was to “establish TMDLs that will lead to expeditious attain-ment of water quality standards .” The committee concluded that specificity is critical in TMDL creation and implementation, as its entire functioning point is to address categories of waters, stressors, or sources of pollutants rather than creating a broad generaliza-tion for them all . Qualities used to assess and determine whether a TMDL is acceptable include quantification, detail, likelihood or attainment of set-out standards, and prescriptiveness . The report further urges consistency in regards to the development and application of new standards of measurements, particularly with the use of water flow as a surrogate to pollutant-based measurements . The committee identified seven necessary components needed for proper development of TMDL assessments . They
PAGE 9 VOLUME 1 , ISSUE 1
include: 1) target identification, specifically in regards to a measurable environmental characteristic; 2) identification of current devia-tion from the target (essentially an assessment of how and to what extent the water body deviates from the baseline conditions); 3) source identification; 4) allocation of pollution loads or alternatives, providing an equivalent demonstration of attainability of stan-dards; 5) creation of an implementation plan; 6) development of process for monitoring/assessing the effectiveness of the TMDL; and 7) the process for revision of the TMDL, if necessary . These seven components are critical to understand in consideration of the creation and implementation of the developing storm water flow TMDL surrogacy, as they serve as the skeleton of sorts for successful TMDL creation . If storm water flow is to become an appropriate substitute for pollutant-based TMDL assessments, then such implementations must embody these seven components . So with such adamant and apparent support from the federal government regarding flow surrogacy, the inquiry then be-comes: why are states not using this model? The question looks to be addressed through an assessment of Hinkson Creek; a watershed in Central Missouri sick from unknown pollutants that attempted to use flow surrogacy but significantly failed. The remaining analysis of this paper will revolve around the model laid out by NACEPT as it applied or, conversely did not apply in Hinkson Creek, focusing particularly on how and why the surrogacy model failed. Hinkson Creek begins in Boone County, Missouri and flows southwest through the city of Columbia before joining Perche Creek, eventually connecting with the Missouri River . The Hinkson Creek watershed covers approximately ninety (90) square miles of Boone County and drains around sixty percent (60%) of the land area within the city of Columbia . The impaired part of Hinkson Creek begins at Interstate 70 and flows through the city of Columbia to the stream’s confluence with Perche Creek . Land use and covering changed dramatically within the watershed area over the past several decades . In 1993, land use within the watershed was 7.9 percent urban, implying only a small percentage usage for urban development purposes . In 2005, urban land use within the watershed increased to 20.7 percent, increasing 160 percent within two decades . Most of the urbanization has remained in lower portion of the watershed, surrounding the city of Columbia . Between 1990 and 2000, the number of housing units within the watershed increased by 30.5 percent . The gradual increase in urbanization within Hinkson Creek raised levels of impervious surfaces, correlating with and influencing the quantity and quality of storm water runoff within the watershed . Hinkson Creek was originally placed on the 1998 Missouri 303(d) List for unspecified pollutants due to urban nonpoint run-off . Prior to its listing, the Missouri Department of Natural Resources (“MDNR”) received reports on the water quality of streams in Hinkson regarding five primary areas of concern: 1) larger and more frequent flooding due to the increase in impervious surface; 2) increased soil erosion in construction and development areas with subsequent deposition of the soil in streams; 3) water contamination from urban storm water flows that pickup and carry pollutants from sources within the watershed; 4) degradation of habitat for aquatic organisms; and 5) degradation of aquatic habitat due to the physical alteration of stream channels and adjacent streamside corridors . Citizen reports have been filed in regards to all five water quality problems . The final determination regarding the cause of health deterioration for the watershed was impairment as a result of increased urban runoff . In 1999, the American Canoe Association (“ACA”) and the Sierra Club sued the EPA for failure to cause MDNR to comply with the federal Clean Water Act . MDNR had made several findings regarding the health of the watershed, but had not yet cre-ated a TMDL in response to its impairment . In 2001, there was an ultimate settlement agreement entered into with the EPA, ACA, and the Sierra Club . The final agreement between the parties required MDNR to create TMDLs for the Hinkson Creek watershed, as well as an adequate monitoring and reporting system on the progress of their studies . The agreement gave MDNR ten years to complete 174 TMDLs for the named area . The initial TMDL for Hinkson called for a reduction in storm water flow by 65.9% throughout the whole watershed . MDNR noted in its studies, among other things, increased sediment and low dis-solved oxygen levels were impairing the health of Hinkson, but neither where attributing to the health problems and no particular pollutant could be singly identified as the source . MDNR determined that possible sources of the pollutants affecting the creek included both point and non-point sources but that the ultimate origin was unknown . The Central Missouri Development Council (“CMDC”), the County of Boone, the City of Columbia, and the University of Missouri-Columbia found fault in the TMDL for problems relating to price, land use, and measures of exactitude, and heavily opposed the initial TMDL . This opposition to the initial figure eventually forced the hand of MDNR in decreasing the reduction number to approximately fifty percent (50%) . The revised reduction level did little to dissuade opposition, and MDNR called for the EPA’s assistance and guidance in drafting a TMDL with a reasonable and obtainable reduction level . Using data collected by MDNR, the EPA determined the appropriate reduction level should be set around forty percent (39.6%) . CMDC and the local governments continued to oppose the TMDL and protested the reduction figures, but the EPA held strong to its determination and used it in its final TMDL issued on January 28, 2011 . The City of Columbia brought suit against the EPA immediately following the January 2011 TMDL, eventually ending with the signing of another settlement agreement on April 26, 2012 . The agreement calls for an “iterative process to provide a com-munity-based approach to improving the water quality and biological characteristics of Hinkson Creek” through “a stakeholder-based adaptive management process for decision making dealing with scientific and socio-economic complexities and uncertainties inherent in many ecosystems .” This process, collectively known as collaborative adaptive management (“CAM”), is a method for taking “management actions” through a selected body of individuals and groups, and mapping the influence of CONTINUED ON NEXT PAGE
PAGE 10 ENVIRONMENTAL LAW REPORTER
remedial measures on the health of the stream ecosystem . Although facially compelling, the settlement does away entirely with storm water flow surrogacy . The EPA’s attempt to use the Hinkson Creek watershed as a model for implementation of storm water flow surrogacy failed for several reasons, notably because Hinkson was an imperfect model for introducing this new methodology for flow regula-tion. The model specifically failed because Hinkson Creek’s development plan did not appear to consider nor adopt the NA-CEPT guidelines for TMDL formations . In creating a TMDL, current deviations from the target level are necessary in order to understand the extent of impair-ment as well as the extent of necessary remedial measures . The EPA and MDNR were unable to sufficiently establish the deviation of the pollutant from its target level because the target level was not a pollutant and therefore had no measurable de-viation . Unknown pollutants were named as hindering the health of the watershed; therefore sufficient mathematical devia-tions could not be properly established . Neither party knew concretely that storm water runoff was the exact culprit of the pollution, thus any target reduction in storm water runoff was merely a guesstimation as to whether or not it would posi-tively and healthily impact the Hinkson Creek watershed . There were several possible attributors listed, including urban runoff and urban nonpoint source, but actual causation could not be solidified through any factual basis or analysis . In places where there has been success, the pollutants of con-cern are known, and the sources of their origin are reasonably identifiable or potential sources are narrowed . In Vermont, as an illustration, EPA was able to identify the endangering pollutants and narrow it down to a limited group of sources, making the implementation of storm water runoff assessment much easier and more practical . For example, in the TMDLs issued by EPA for Allen , Indian , Sunderland  and Munroe Brooks in Vermont, the primary pollutant was identified as sediment where storm water flow surrogacy was used . The amount of water running through theses water bodies was directly linkable to the amount of sediment flow causing pollution . Such was not the case in Hinkson Creek, where scientists were only postulating as to whether or not reductions in runoff would positively impact the health of the watershed . EPA knew that there were increased flood rates, increased soil erosion, degradation of habitat, and water contamination in the Creek . However, the EPA’s link between the health of the creek and these factors was attenuated at best . The TMDL’s best cited data was based off other similarly situated regions and any supporting data from Hinkson itself was severely outdated . The last tests on the watershed were done from 2001 to 2006, and at that time the testing met median EPA standards . The EPA was essentially hoping that a reduction in storm water flow would decrease the spread of whatever pollutant was poisoning the water shed without hav-ing to do additional testing measures to determine the source of the type of pollutant or its source . NACEPT defines “allocation of loads” to mean the setting of quantified pollution reduc-tion responsibilities among the identified sources, along with a determined margin of safety, and any allocation for future growth, variations, and other attributable factors . MDNR originally suggested a sixty-five percent (65%) decrease in the amount of water runoff over time . Pressure mounted against MDNR pre-EPA involvement because of the estimated cost of the cure coupled with an alleged lack of science used to try and support their conclusion, accordingly to the opposition . It was estimated that full implementation of this reduction rate would cost the county $300 million dollars and require over 1,800 acres of land for development purposes . Due to protests, the goal reduction rate was eventually dropped to 50.1% in hopes that a lower number would reduce implementation costs . Using economic models from Ver-mont, a reduction to fifty percent (50%) did not appear to alleviate price concerns . The protests did not diminish, thus MDNR requested the help of the EPA , who their own TMDL and determined that the proper flow rate reduction should be 39.6% over several years . A reduction rate of 39.6% may, in fact, be attainable and reasonable in consideration of the issues within the watershed and the monetary status of the city and state. The CMDC and the local governments recognized that storm water reduction in any watershed may improve the health of the water bodies within it . However without any tangible evidence to show how water flow surrogacy would benefit Hinkson Creek, the city was unwilling to invest . Protest stemmed almost entirely from the lack of substantive evidence supporting the TMDL . Many political figures publicly spoke out against EPA’s TMDL, alleging, among other things, that it was supported by a “breathtaking lack of science. ” It is not enough for there to be only an increase in water flow to make the application of storm water surrogacy worth-while. In instances of success, states have been able to attribute the failing health of some water bodies with the increase of pol-lutants through storm water flow . As the law stands now, storm water flow is not a pollutant,
THE USE OF FLOW
FULL OF REMEDIAL
POTENTIAL . WHEN
RIGHT , ITS IMPLE-
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PAGE 11 VOLUME 1 , ISSUE 1
 but serves, instead, as transportation mechanism for named pollutants under the CWA . Hinkson Creek lacked a known inhibitor and therefore has been grossly unsuccessful in its implementation of the process . EPA’s January 2011 TMDL in Hinkson Creek seemed to be based upon the insinuation that an increase in urbanization, over time, would increase levels of impervious surfaces and subsequently cause an increase in flow rates . Although this generalization appears to have a fundamental corollary effect, EPA struggled to correlate the increase in impervious surface ar-eas to watershed health in Hinkson Creek, and named correlations were based on findings in parallel locations, and not Hinkson Creek itself. The TMDL explicitly states, “Stream studies on other urban streams have documented strong correlations between the imperviousness of a drainage basin and the health of its receiving streams” [emphasis added] . Any causation appears speculative, at best, and insufficient to support full implementation of a new TMDL model. Further, there were several point sources cited in the TMDL that may have been attributing to the increase in storm water runoffs. Numerous permits had been issued by the Missouri State Operating Permits system, including twenty-one (21) domestic facilities permits, four (4) non-domestic permits, six (6) general permits, and over 126 storm water permits . MNDR assessed the design flow of some 136 permits and determined that their output may be a causal link in the problem . CAM is presently focused on regulation of these permits and their output in hopes that this oversight will resolve some of the problem while saving the county a fair amount of money. Most importantly, the economic considerations embedded within this potential implementation were numerous. Even though price estimates were based on surrogacy implementation in other regions,  the smallest estimates for Hinkson were still in the hundreds of millions of dollars . For a county facing budget deficits and land use problems, the ability to splurge and spend an extraordinary amount of money in hopes of curing an uncertain problem is economically foolish. There is no doubt, it seems, that EPA had phenomenal intentions when attempting to utilize this surrogacy measure. However, the assess-ment must be thorough and address mot than the mere environmental concerns of the region and the area.
In addition to the scientific and fiscal problems associated with Hinkson, there were also political problems and pressures surrounding the TMDL. The “Hinkson Saga,” as it has been coined, garnered significant and unwelcomed media attention in Missouri . Not only was EPA up against a substantially challenging legal battle, but the watershed was gathering a lot of unwanted media attention that focused extensively on the weak points in EPA’s flawed plan . Opposition was in favor of finding a solution to the pollution problem in the watershed and securing a resolution but through substantially different measures. EPA was painted as unreasonable, unprepared, and uninformed in terms of their involvement with the watershed. Scientific, economic, and political factors, in and of themselves, do not constitute insurmountable problems for storm water flow surrogacy . However, when taken together, these factors combine to create a lethal problem for surrogacy options. The EPA was not wrong to suggest flow surrogacy for the Hinkson Creek water body as the primary goal of flow surrogacy is to help remedy failing water bodies that are uncertainly impaired. However, it is apparent that consideration was lacking in regards to whether it was practi-cal, feasible, and worthwhile. Storm water flow surrogacy is new and appears to be a promising remedial measure. But the EPA must be careful in its selection of these sites if it wishes to secure both state interest and local willingness in compliance. Force-fitting this measurement tool will do little to further the interests of the federal government in this
regard, or work to further the goals of the Clean Water Act and the TMDL program. If the true goal of the EPA is to find a so-lution to the country’s largest water pollution problem, they must carefully select sites that fit the mold until the practice be-comes more development and accepted. The use of flow surrogacy is important and full of remedial potential. When the conditions are right, its implementa-tion appears worthwhile and successful. However when selection of sites is not considered under the entire purview of impact-ing components, then its subsequent failure does little to fulfill environmental goals and motives. The EPA’s initiative would be best served by temporarily focusing on testing surrogacy in ideal water quality conditions. Despite the apparent failures of Hink-son Creek, the surrogacy option is good for water bodies that are experiencing significant impairment because of heavy flow rates. Storm water flow surrogacy is a beneficial and potentially successful method for curing nonpoint source pollution in this country, and is something the EPA and state governments must consider in order to secure the health of this nation’s precious waters.
STORM WATER FLOW
SURROGACY IS A
BENEFICIAL AND POTEN-
METHOD FOR CURING
POLLUTION… AND IS
SOMETHING THE EPA
AND STATE GOVERN-
MENT MUST CONSIDER
IN ORDER TO SECURE
THE HEALTH OF THIS
NATION ’S PRECIOUS
PAGE 12 ENVIRONMENTAL LAW REPORTER
Using Water Flow in TMDL Assessments
 See Summary of the Clean Water Act, EPA, http://www.epa.gov/lawsregs/laws/cwa.html (last visited Mar. 1, 2013).  See James Salzman, Why Rivers No Longer Burn, Slate Magazine (Dec. 10, 2012), http://www.slate.com/articles/health_and_science/science/2012/12/clean_water_act_40th_anniversary_the_greatest_success_in_environmental_law.html (celebrating the anniversary of the Clean Water Act and discussing the successes of the Act since its implementation).  Id.  National Pollutant Discharge Elimination System (NPDES), EPA, http://cfpub.epa.gov/npdes/index.cfm (last visited Apr. 14, 2013).  See Office of Water, EPA, EPA-833-R-01-001, Protecting the Nation’s Waters Through Effective NPDES Permits, (June 2001) http://www.epa.gov/npdes/pubs/strategicplan.pdf.  What is Nonpoint Source Pollution?, EPA, http://water.epa.gov/polwaste/nps/whatis.cfm (last visited Mar. 3, 2013) (note that this is not a comprehensive list for pollutants of concern for nonpoint sources).  Water Quality Handbook: 1.5 EPA Authority, EPA, http://water.epa.gov/scitech/swguidance/standards/handbook/chapter01.cfm (last visited Mar. 2, 2013). Also, the federal government gives significant power to the states in the ability to define and create their own water quality standards. See Linda A. Malone, State standards for water quality, 1. Envtl. Reg. of Land Use § 8:4 (2012). Although this delegation of power is complex and easily the subject of significant, additional research, it is important to note and understand the relationship between the federal government and the sovereign states, even on a basic level. The federal government generally serves as an overseer of sorts, watching and regulating state water quality. See id. Much deference is given to the states in their implementation of water standards, but the federal government still has the power to approve and change, within limita-tion, state assessments. Id. In United States v. Mexico, the Supreme Court held that, “where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law.” 438 U.S. 696, 701, 98 S. Ct. 3012, 3015 (1978). Whether the federal government has the ability to force states to use storm water flow control in TMDL development is still up in the air.  Water Quality Handbook: 7.4 Evaluate Water Quality Standards for Targeted Waters, EPA, http://water.epa.gov/scitech/swguidance/standards/handbook/chapter07.cfm#section4 (last visited Mar. 2, 2013).  Designated Uses, EPA, http://water.epa.gov/scitech/swguidance/standards/uses.cfm (last visited April 10, 2013) (citing several common uses of water, such as public water supply, fish protection, recreation, agriculture, and navigation, among others).  Id.  Id.  Water Quality Handbook: 1.5 Authority, supra note 7.  Impaired Waters and Total Maximum Daily Loads, EPA, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/index.cfm (last visited Mar. 2, 2013).  33 U.S.C.A. § 1313(d) (2000).  What is a 303(d) list of impaired waters?, EPA, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overview.cfm (last visited Mar. 23, 2013).  What is a TMDL?, EPA, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm (last visited Mar. 23, 2013).  Section 303(d) of the Clean Water Act, EPA, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/intro.cfm#section303 (last visited Mar. 2, 2013).  Id.  Id.  Id.  40 CFR § 130.2(h) (2003).  40 CFR § 130.2(f) (2003).  Erin Tobin, Pronsolino v. Nastri: Are TMDL’s for Nonpoint Sources the Key to Control-ling the “Unregulated” Half of Water Pollution?, 33 Envtl. L. 807, 808 (2003) (arguing, among other things, the importance of federal recognition of the relationship be-tween TMDL development and nonpoint sources through the holding in Pronsolino).  Polluted Runoff: Nonpoint Source Pollution, EPA, http://water.epa.gov/polwaste/nps/ (last visited Mar. 30, 2013). “  Id.  See Tobin, supra note 23, at 808.  What is Nonpoint Source Pollution?, EPA http://water.epa.gov/polwaste/nps/
whatis.cfm (last visited Mar. 31, 2013).  See Tobin, supra note 23.  Nonpoint Source Control Branch, EPA, EPA-841-F-05-001, Protecting Water Quality from Agricultural Runoff, (Mar. 2005), http://www.epa.gov/owow/NPS/Ag_Runoff_Fact_Sheet.pdf.  David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Action: The Clean Water Act’s Bleak Present and Future, 20 Harv. Envtl. L. Rev. 515 (1996).  See Ohio Env’t Prot. Agency, EPA, Flow-Based Surrogate TMDLs, A Case Study in Ohio: Lower Grand River TMDL, (Jan. 2012), http://www.epa.state.oh.us/portals/35/tmdl/GrandLower_SurrogateTMDLFactSheet.pdf [hereinafter “Ohio Case Study”] (illustrating the use and benefits of flow surrogacy through its use implementation in the Lower Grand watershed).  Id.  See VA Dep’t of Transp. v. U.S.E.P.A., No. 1:12-CV-775 (E.D. Va. Jan. 3, 2013) (holding that EPA is not authorized to regulate storm water runoff via the TMDL process because the language of CWA clearly indicates that storm water is not a pollutant).  Mandi M. Hale, Pronsolino v. Marcus, The New TMDL Regulation, and Nonpoint Source Pollution: Will the Clean Water Act’s Murky TMDL Provision Ever Clear the Waters?, 31 Envtl. L. 981, 983 (2001).  Id.  See 40 C.F.R. § 130.7 (2013) (laying out both the legal responsibilities of the states and the process through which compliance is necessary).  The Water Quality-Based Approach to Pollution Control, Chapter 2 of Water: Total Maximum Daily Loads (303)d), EPA, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/dec2.cfm (last visited Mar. 20, 2013).  Development and Implementation of the TMDL, Chapter 3 of Water: Total Maximum Daily Loads (303(d)), EPA, http://water.epa.gov/lawsreg/lawsguidance/cwa/tmdl/dec3.cfm (last visited Mar. 20, 2013).  Id.  See 33 U.S.C.A. § 1313(i)(2)(A) (2000); see also Mary E. Christopher, Time to Bite the Bullet: A Look at State Implementation of Total Maximum Daily Loads (TMDLs) Under Section 303(d) of the Clean Water Act, 40 Washburn L.J. 480, 506 (2001) (demonstrating that EPA does, and will, formulate state water quality standards and/or TMDLs where the states fail to do so).  Theresa Heil, Agricultural Nonpoint Source Runoff – The Effects Both On and Off the Farm: An Analysis of Federal and State Regulation of Agricultural Nonpoint Source Pollut-ants, 5 Wis. Envtl. L.J. 43, 46 (1998). h  See Hale, supra note 34, at 982; see also Tobin, supra note 23, at 811 (discussing the nonpoint source pollutant in depth).  See id at 984-85 (looking at the legislative history of the CWA and showing that initial control methods for nonpoint sources were minimal and unsuccessful).  Stormwater Basic Information, EPA, http://cfpub.epa.gov/npdes/stormwater/swbasicinfo.cfm (last visited Apr. 2, 2013).  Water Quality Standards History, EPA, http://water.epa.gov/scitech/swguidance/standards/history.cfm (last visited Apr. 2, 2013).  Stormwater Discharges From Industrial Facilities, EPA http://cfpub.epa.gov/npdes/stormwater/indust.cfm (last visited Mar. 26, 2013).  Id.  Va. Dep’t of Transp v. U.S. Envtl. Prot. Agency, No. 1:12-CV-775 (E.D.Va. Jan. 3, 2013).  See generally id.; see also 33 U.S.C.A. § 1313(d)(1)(C) (2000).  Id. at 3.  Id. at 2.  Id. at 3.  See id. (with the court holding that the EPA storm water is not a pollutant and may not be used as a substitute in TMDL formation under the CWA).  40 C.F.R. § 130.2(i) (2000).  See Ohio Case Study supra note 31, at 1 (discussing the background and benefits of surrogacy use).  See generally The National Advisory Council For Environmental Policy and Technology, EPA, Report of the Federal Advisory Committee on the Total Maximum Daily Load (TMDL) Program, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/upload/2004_12_14_tmdl_faca_facaall.pdf (1998) [hereinafter NACEPT Report] (recommending, discussing, and laying out ways to improve the TMDL process, as well as cooperation between the state and the federal government, among other things).  Id. at 31-33.  Id. at G-3.  Id. at 7.
 See id. at 7-9 (reviewing the TMDL program, as well as its purpose and goals, The committee states that where there is a lack of certainty regarding the reasons of impair-ment, ‘the best possible data must be used in making a reasonable, balanced, scientifi-cally defensible, iterative approach to settling goals and implementing actions’ to meet water quality standards. Although more difficult, qualified professionals are needed to make sound judgments regarding the ‘hydrological, chemical, physical, political, eco-nomic, and social issues’ relating to the TMDL process).  Id. at 25.  Id. at 32-34.  Id. at 25.  Id.  Id. at 1.  See generally NACEPT Report, supra note 56 (demonstrating through illustration the importance of adherence to the report guidelines in creating and implementing success-ful TMDLs).  U.S. EPA Region 7, Total Maximum Daily Load Hinkson Creek (2012) (visited Apr. 1, 2013) http://www.epa.gov/npdes/pubs/strategicplan.pdf [hereinafter Hinkson Creek TMDL].  Id. at 3.  Id.  Id.  Id.  Id. at 3-4.  Id. at 6.  Id.  Id.  Id. at 8.  Id.  Id.  Id.  Kevin Midkiff, Tempest about a TMDL, Missouri Chapter of Sierra Club http://missouri2.sierraclub.org/conservation/tempest-about-tmdl (last visited Mar. 13, 2013).  Id.  Id.  See Settlement Agreement, Missouri Department of Natural Resources, 4 http://www.dnr.mo.gov/env/wpp/tmdl/tmdl_Settle_Agr.pdf (Apr. 5, 2013).  Id. at Attachment A.  Midkiff, supra note 80.  Settlement Agreement, supra note 83, at 9.  Id. at 9-16.  See Roper, infra note 112.  Midkiff, supra note 80.  Id.  Id.  Ken Midkiff, The Hinkson Creek Saga http://missouri.sierraclub.org/SierranOnline/2011/04/hinkson_creek.html (last visited Apr. 21, 2013) [hereinafter Hinkson Creek Saga].  Collaborative Adaptive Management Implementation Schedule and Agreement for Hinkson Creek TMDL, Hinkson Creek Watershed Restoration Project, 2 http://helpthehinkson.org/documents/TMDL_Settlement_Agreement.pdf [hereinafter CAM Settlement] (last visited Apr. 24, 2013).  Id.  Id.  U.S. EPA Drops Flow-Based Surrogate From Missouri TMDL, Water Environment Fed-eration http://stormwater.wef.org/2012/06/u-s-epa-drops-flow-based-surrogate-from-missouri-tmdl/ (last visited Apr. 25, 2013).  See generally Hinkson Creek TMDL (looking at the implementation methods, science, and assessments, and making a determination in consideration of the seven components laid out by NACEPT).  NACEPT Report, supra note 56, at 30.  Hinkson Creek TMDL, supra note 67, at 2.  Id. at 37.  Jodie Jackson Jr., Hinkson plan faces criticism from all sides, Columbia Daily Tribune (Apr. 21, 2010, 2:00 PM) http://www.columbiatribune.com/news/local/hinkson-plan-faces-criticism-from-all-sides/article_7d2fdcc5-4bc4-5f30-a33e-938073a4ad94.html.  Hinkson Creek TMDL, supra note 67, at 8.  See infra notes 114-118.  See Total Maximum Daily Load To Address Biological Impairment in Potash Brook, Ver-mont Department of Environmental Conservation Water Quality Division (Oct. 2006) [hereinafter Potash Brook TMDL] http://www.anr.state.vt.us/dec//waterq/stormwater/docs/sw_pot_tmdl_final_epa_submittal.pdf. (looking specifically at
Potash Creek, where named sediment as the pollutant of concern where storm water flow was the mechanism through which sediment levels increased).  Total Maximum Daily Load To Address Biological Impairment in Allen Brook, Vermont Department of Environmental Conservation Water Quality Division (Sept. 2008) http://www.vtwaterquality.org/stormwater/docs/sw_all_tmdl_approved.pdf.  Total Maximum Daily Load To Address Biological Impairment in Indian Brook, Vermont Department of Environmental Conservation Water Quality Division (Sept. 2008) http://www.vtwaterquality.org/stormwater/docs/sw_ind_tmdl_approved.pdf.  Total Maximum Daily Load To Address Biological Impairment in Sunderland Brook, Vermont Department of Environmental Conservation Water Quality Division (Sept. 2008) http://www.vtwaterquality.org/stormwater/docs/sw_sun_tmdl_approved.pdf.  Total Maximum Daily Load To Address Biological Impairment in Munroe Brook, Ver-mont Department of Environmental Conservation Water Quality Division (Sept. 2008 ) http://www.vtwaterquality.org/stormwater/docs/sw_mun_tmdl_approved.pdf.  Stormwater TMDLS, Watershed Management Division http://www.vtwaterquality.org/stormwater/htm/sw_TMDLs.htm (last visited Apr. 20, 2013).  Hinkson Creek TMDL, supra note 67, at 8 (stating, “Nonpoint source pollution is the number one cause of water quality impairment in the United States and accounts for the pollution of approximately 40 percent of all waters surveyed… there is typically not one pollutant or condition that is the sole cause of nonpoint source impairment… The stressors, conditions, and pollutants are collectively [cause]… impairment”).  Id .  Bob Roper, Hinkson TMDL a looming disaster, Columbia Daily Tribune (Jan. 16, 2011, 8:00) AM) http://www.columbiatribune.com/opinion/oped/hinkson-tmdl-a-looming-disaster/article_9674402a-4ba7-5804-9c93-c6cdc32c8215.html.  Id.  NACEPT Report, supra note 56, at 32.  Midkiff, supra note 80.  Id.  Id.  Roper, supra note 112.  Midkiff, supra note 80.  Id.  Id.  Id.  Roper, supra note 112.  Id.  Rudi Keller, Vote backs mayor in EPA opposition, Columbia Daily Tribune (Jan. 4 2011, 2:00 PM) http://www.columbiatribune.com/news/local/vote-backs-mayor-in-epa-opposition/article_2d7940a2-8ceb-55e6-bfd1-7630655f5748.html?mode=commenting.  Id.  See supra notes 114-118, and accompanying text.  Va. Dep’t of Transp v. U.S. Envtl. Prot. Agency, No. 1:12-CV-775 (E.D.Va. Jan. 3, 2013).  Id.  Hinkson Creek TMDL, supra note 67, at iii.  See supra notes 77-87, and accompanying text.  Roper, supra note 112.  Hinkson Creek TMDL, supra note 67, at 9-10.  Id. at 11.  Midkiff, supra note 80.  Roper, supra note 112.  Id.  Midkiff, supra note 80.  See Potash Brook TMDL, supra note 104.
A Horse With No Name  David Von Drehle, The Last Lap, 171 Time 13 (2008).  Maria Michalak, Eight Belles: Triumph Beyond the Wire 45 (2005).  Id. at 34  Id. at 21.  Susan Nusser, Kentucky Derby Dreams: The Making of Thoroughbred Champions 110 (2012).  Jody Demling, Tears follow fatal injury to Eight Belles, The Courier J., May 4, 2008, at D1.  Michalak, supra note 2, at 64.  Id. at 61.
PAGE 14 ENVIRONMENTAL LAW REPORTER
 Luke P. Breslin, Reclaiming the Flory in the “Sport of Kings” – Uniformity is the An-swer, 20 Seton Hall J. Sports & Ent. L. 297 (2010).  David M. Jaugen, Legalized Gambling 118 (2005).  Joan S. Howland & Michael J. Hannon, A Legal Research Guide to American Thor-oughbred Racing Law for Scholars, Practitioners, and Participants 7-8 (1998).  Columbia Encyclopedia, 6th Edition; 11/1/2011.  Id.  Id.  Donald Spivey, Sport in America: New Historical Perspectives 51 (1985).  Id. at 53.  Id.  Haugen, supra note 10, at 6.  Howland & Hannon, supra note 11, at 9.  Matthew Gallagher, The Changing Face of the “Sport of Kings”: A Brief History of Thoroughbred Horse Racing in the United States, Its Revent Decline, and the Legal Implicai-tons Surrounding Racing Partnerships and Syndicates in the Current Landscape, 19 Sports Law. J. 275 (2012).  Cal. Bus. & Prof. Code § 19420 (West 2013).  Id.  Cal. Bus. & Prof. Code § 19578 (West 2013).  N.Y. Rac. Pari-Mut. Wag. & Breed. Law § 102 (McKinney 2013).  N.Y. Comp. Codes R. 7 Regs. Tit. 9 § 4043.8(d) (2013).  810 K.Y. Admin. Reg. 1:028 § 4 (1) (2013).  Kentucky Horse racing Authority Uniform Drug and Medication Classification Schedule, Pub. Prot. Cab., http://khrc.ky.gov/Documents/DrugandMedicationClassificationSchedule.pdf.  Id.  Id.  Id.  Kentucky Horse racing Commission, Pub. Prot. Cab., http://www.khrc.ky.gov/Pages/aboutus.aspx.  Racing Medication & Testing Consortium, Research Program, http://www.rmtcnet.com/content_research.asp.  James M. Lewis, Consortium launches racehorse drug-testing initiative, DVM: News. of Vet. Med., Nov. 1, 2008, at 6.  Ed Kane, Mid-Atlantic states agree to uniform racehorse medication rules, DVM 360, Apr. 10, 2013, at 12.  Dan Connolly, Players union proposes new steroids plan, The Baltimore Sun, Sept. 27, 2005, D7.  About WADA, World Anti-Doping Agency (Apr. 25, 2013, 2:54 PM), www.wada-ama.org/en/About-WADA/.  Alan Abrahamson, Steroid Secrecy Upsets IOC, L.A. Times, Dec. 2, 2003, D1.  Anton Chekhova, Narrator in An Evil Night, Works, vol. 5, p. 386, "Nauka" (1976).
The Meat Industry: Setting the Table for Our Children’s Future
 The Livestock, Environment and Development Initiative, Livestock’s Long Shadow: Environmental Issues and Options, United Nations (Nov. 26, 2006), at iii, [hereinafter “Livestock’s Shadow”], available at ftp://ftp.fao.org/docrep/fao/010/a0701e/a0701e.pdf.  What is a CAFO?, EPA, http://www.epa.gov/region7/water/cafo/ (last visited November 1, 2013).  See generally Zhang, P., N. Fegan, I. Fraser, P. Duffy, R.E. Bowles, A. Gordon, P.J. Ketterer, W. Shinwari & P.J. Blackall, Molecular epidemiology of two fowl cholera outbreaks on a free-range chicken layer farm., Journal of Veterinary Diagnostic Investiga-tion, 16:458-460 (2004).  What is a CAFO?, supra note 2.  Concentrated Animal Feeding Operations (CAFO) - Final Rule, EPA, http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm (last visited Oct. 30, 2013).  How Do CAFOs Impact the Environment?, EPA, http://www.epa.gov/region07/water/cafo/cafo_impact_environment.htm (last visited Oct. 30, 2013).  Wastewater Technology Fact Sheet, EPA, http://water.epa.gov/scitech/wastetech/upload/2002_10_15_mtb_alagoons.pdf (last visited Oct. 31, 2013).  Id.  Id.  Livestock’s Shadow, supra note 1, at 69.  Id.
 Summary of the Clean Water Act, EPA, http://www2.epa.gov/laws-regulations/summary-clean-water-act (last visited Nov. 1, 2013).  See National Enforcement Initiatives for Fiscal Years 2008-2010, EPA, http://www.epa.gov/compliance/data/planning/priorities/cwacafo.html (last visited Nov. 2, 2013).  Swift Beef Company to Pay $1.3 Million Penalty for Clean Water Act and State Law Violations at Its Grand Island, Nebraska Beef Processing Plant, Office of Public Affairs, Department of Justice (June 16, 2011), available at: http://www.justice.gov/opa/pr/2011/June/11-enrd-781.html.  S.B. 648, 2013 Gen. Assemb., 2013 Sess. (N.C. 2013).  Livestock’s Shadow, supra note 1, at 29.  Id.  Id. at 28.  Id.
Reviewing Coalition for responsible regulation, Inc. v. EPA
 Massachusetts v. EPA, 549 U.S. 497, 505 (2007).  Coal. for Resp. Reg. Inc. v. EPA., 684 F.3d 102, 114 (D.C. Cir. 2012).  Massachusetts, 549 U.S. at 504-05.  Elizabeth Shogren, Supreme Court To Weigh EPA Permits For Power Plant Emissions, NPR (Oct. 15, 2013, 5:04 PM), http://www.npr.org/blogs/thetwo-way/2013/10/15/234731532/supreme-court-to-weigh-epa-permits-for-power-plant-emissions.  Id.  Massachusetts v. EPA, 549 U.S. 497, 529 (2007).  Lyle Denniston, Court To Rule On Greenhouse Gases, SCOTUSblog (Oct. 15, 2013, 9:35 AM), http://www.scotusblog.com/2013/10/court-to-rule-on-greenhouse-gases/.  Coal. for Resp. Reg. Inc., 684 F.3d at 134.  Id.  Shogran, supra note 4.  Coal. for Resp. Reg. Inc., 684 F.3d at 134.
Bell v. Cheswick: A Victory for Private Property Owners  Bell v. Cheswick, 734 F.3d 188 (2013).
 International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883
 Bell, 734 F.3d at 193-94.
 Id. at 193.
 Id. at 196.
 Id. at 192.
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 Id. at 194.
 Id. at 194-95.
The U.S. Nuclear Regulatory Commission’s Re-sponse to the Fukushima Disaster
 Tanya Lewis, Fukushima Radiation Leak: 5 Things You Should Know, Livescience, (Aug. 21, 2013, 05:05 PM) http://www.livescience.com/39067-fukushima-radiation-5-things-to-know.html.  Id.  Id.  Id.  Id.  Id.  Id.  Kiyoshi Takenaka and James Topham, Japan’s nuclear crisis deepens: China express “shock”, Reuters (Aug. 21, 2013, 06:24 AM), http://www.reuters.com/article/2013/08/21/japan-fukushima-idUSL4N0GM0DG20130821.  Id.  U.S. Nuclear Regulatory Commission, Japan Lessons Learned (June 26, 2013)http://www.nrc.gov/reactors/operating/ops-experience/japan-dashboard.html.
PAGE 15 VOLUME 1 , ISSUE 1
Understanding Coal Ash, A Summary
 Community Groups File Lawsuit for Federal Coal Ash Protections, Earthjustice (April 5, 2012), http://earthjustice.org/news/press/2012/community-groups-file-lawsuit-for-
 Dumping Toxic Waste, Sierra Club,http://content.sierraclub.org/coal/disposal-ash-waste (last visited Oct. 30, 2013) (providing a general overview of coal ash).
 Coal Ash: Toxic – and Leaking, Physicians For Social Responsibility, http://www.psr.org/environment-and-health/code-black/coal-ash-toxic-and-leaking.html (last
visited Oct. 30, 2013) (discussing both an overview of coal ash and a brief summation of recent news).
 Steven G. Gilbert, Coal Ash: Not Good for Anyone’s Backyard, Physicians for Social Responsibility (March 2, 2012), http://www.psr.org/environment-and-health/
 Community Groups File Lawsuit for Federal Coal Ash Protections, Earthjustice (April 5, 2012), http://earthjustice.org/news/press/2012/community-groups-file-lawsuit-for
 Id.  Kate Sheppard, Judge Directs EPA To Cough Up A Timeline For Finalizing Coal Ash Rules, The Huffington Post (Oct. 29, 2013), http://www.huffingtonpost.com/2013/10/29/coal-ash-epa_n_4175599.html.
The North Carolina Central University School of Law