A recent report issued by the Natural Resources Defense Council ("NRDC") and the National Disease Clusters Alliance ("NDCA") has identified 42-alleged disease clusters in 13 states. [Please click here for a map of these locations.] According to the report, there is an increased incidence of cancer, birth defects and other chronic illnesses in these disease clusters. The study, which focused only on the following 13 states (Texas, California, Michigan, North Carolina, Pennsylvania, Florida, Ohio, Delaware, Louisiana, Montana, Tennessee, Missouri and Arkansas), evaluated research compiled by federal, state and local officials, as well as peer-reviewed studies, to identify the 42 disease clusters. According to the NRDC and the NDCA, the purpose of the report was to highlight the need for (1) federal agencies to work cooperatively with state and local officials to investigate these disease clusters, (2) reduction or elimination of contaminant release into the air, water and soil and (3) chemical manufacturers to better ensure the safety of their products. Plans are apparently underway to evaluate whether disease clusters exist in each of the remaining 37 states. The NRDC is set to testify before the Senate Environment and Public Works Committee on Tuesday, March 29, 2011 on the results of this report. For a copy of the report, please click here.
On March 21, 2011, the U.S. Department of Interior approved the first Gulf of Mexico deepwater exploration plan since the Deepwater Horizon incident last year. An exploration plan describes all of an operator's planned exploration activities for a specific lease, including the timing of the proposed activities, the location of each planned well, and other relevant information. Once a plan is approved, the operator can pursue permits to drill. The plan, submitted by Shell Offshore, a subsidiary of Royal Dutch Shell PLC, calls for the drilling of three new exploratory wells in Shell's Augur field, an area 130 miles offshore of Louisiana that has been producing oil and gas since 1994.
This Saturday, March 26, 2011, people around the world will turn off their lights for one hour, starting at 8:30 pm, in honor of Earth Hour, described by its founding organization, the World Wildlife Fund, as "a worldwide collective display of commitment to protect the one thing that unites us all - the planet." Earth Hour began in Australia in 2007 with 2.2 million individuals and over 2,000 businesses turning off their lights for one hour. Since its first year, Earth Hour has grown exponentially. In its second year, an estimated 50 million people participated in the event. 2010 marked Earth Hour's biggest participation yet, including people in 128 countries and territories and numerous landmarks worldwide. The Earth Hour sustainability effort has gained the support of numerous world leaders, including United Nations Secretary General Ban Ki-moon, quoted as stating, "[a]ll over the world individuals, communities, businesses and governments are creating new examples for our common future – new visions for sustainable living and new technologies to realize it. Tomorrow, let us join together to celebrate this shared quest to protect the planet and ensure human well-being. Let us use 60 minutes of darkness to help the world see the light."
For more information on Earth Hour, go to the Earth Hour website.
Coal and oil-fired power plants are the largest source of mercury emissions in the United States, currently accounting for approximately 50% of the country's mercury emissions. With this statistic in mind, U.S. EPA issued a proposed rule on March 16, 2011, which would create emissions standards for all Hazardous Air Pollutants ("HAPs") emitted from coal and oil-fired power plants, including mercury, arsenic, dioxin and hydrochloric acid.
Contamination in Excess of State Standards Insufficient to Demonstrate RCRA Imminent and Substantial Endangerment
A Colorado federal district court recently rejected a plaintiff's efforts to demonstrate RCRA imminent and substantial endangerment based solely on the presence of contamination in excess of applicable state standards and ongoing regulatory oversight of the remediation efforts. In Board of County Commissioners of the County of La Plata v. Brown Group Retail, Inc. et al., the current property owner (the County) asserted a RCRA claim (as well as a CERCLA cost recovery claim) against the corporate successor to a former site owner. In support of its RCRA claim, the County relied upon a health risk assessment that concluded that environmental conditions at the site presented a risk to human health due in large part due to the presence of contaminants in soil, groundwater, and indoor air that exceeded applicable regulatory action levels. The court rejected that argument, noting that "[r]egulatory screening levels, action levels, and standards do not identify real or actual risks to human health. Rather, these regulations are designed to protect the public health by identifying the level of chemical exposure at which there is no threat of harm with a large margin of error. Exceedance of regulatory screening levels, action levels, or standards therefore does not demonstrate a real or actual risk to human health."
International World Water Day is held annually to focus attention on the importance of freshwater and advocating for the sustainable management of freshwater resources. A recommendation of the United Nations Conference on Environment and Development, the United Nations General Assembly responded by designating March 22, 1993 as the first World Water Day.
The objective of World Water Day 2011 is to focus international attention on the impact of rapid urban population growth, industrialization and uncertainties caused by climate change, conflicts and natural disasters on urban water systems. The 2011 theme is "Water for cities: responding to the urban challenge," and aims to spotlight and encourage governments, organizations, communities and individuals to actively engage in addressing the defy of urban water management.
The main World Water Day 2011 is to be hosted today in Cape Town by the government of South Africa, in collaboration with UN-Water, the African Ministers' Council on Water, the United Nations Secretary General's Advisory Board on Water and Sanitation, the United Nations Environment Programme and the United Nations Human Settlement Programme.
Learn more about the World Water Day 2011 and the urban water challenges facing communities around the world at https://www.unwater.org/worldwaterday/mainindex.html.
On March 17, 2011, the EPA issued a final rule that extends the deadline for reporting 2010 data under the Greenhouse Gas (“GHG”) Reporting Program to September 30, 2011. The original deadline was March 31, 2011. See EPA Postpones Deadline For Reporting 2010 Greenhouse Gas Emissions. In a news release, EPA stated, “[t]his extension will allow EPA to further test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting.” EPA 3/17/2011 News Release.
Entities that must submit data under the GHG Reporting Program are required to register with the electronic GHG reporting tool (e-GGRT) no later than 60 days before the new reporting deadline or by August 1, 2011. EPA plans to continue to conduct outreach and training webinars on the reporting requirements and use of the electronic reporting tool, e-GGRT. Information will be posted on the GHG Reporting Program website and RSS feed.
On March 14, 2011, the Ninth Circuit affirmed a district court ruling that found that BCI Coca-Cola Bottling Co. ("BCI") was not liable as an owner under CERCLA. In Los Angeles v. San Pedro Boat Works, the city of Los Angeles sued BCI to recover response costs it had incurred to remediate contaminated sediments in Los Angeles Harbor. According to the complaint, the City alleged that the activities of BCI's predecessor-in-interest, Pacific American, Inc. ("Pacific-American") contributed to the sediment contamination in the harbor. Pacific-American did not own the boat works facility outright but rather operated that facility pursuant to a permit that had been issued by the city of Los Angeles. In support of its CERCLA claims, the City argued that because Pacific-American owned the permit, it was an "owner" under CERCLA. The City also argued that Pacific-American was liable as an "operator" under CERCLA. The district court found that BCI was neither an "owner" or "operator" under CERCLA. The City appealed the district court's finding that BCI was not an "owner" under CERCLA; however, for reasons that are not clear from the record, the City did not appeal the "operator" liability determination.
The March 2011 edition of the American Bar Association's (ABA) Environmental Disclosure Committee Newsletter includes an article by E. Lynn Grayson about the Carbon Disclosure Project's (CDP) first water related information request. The article details growing concerns about climate change and water scarcity and the potential material risks posed by these matters.
The newsletter is published by the ABA's Environmental Disclosure Committee of the Section of Environment, Energy and Resources and is available at https://www.americanbar.org/content/dam/aba/publications/nr_newsletter/ed/201103_ed.authcheckdam.pdf.
According to New EPA Assessment, U.S Population Continues to Face Increased Cancer Risk From Airborne Emissions
On March 11, 2011, the United States Environmental Protection Agency released its fourth version of the National Air Toxics Assessment ("NATA"). NATA is an analytical tool relied upon by federal, state and local governments to evaluate the risks posed by exposure to airborne hazardous pollutants. The current version of NATA contains 2005 emissions data submitted primarily by the states for 178 pollutants and is used as a prioritization tool to identify geographic areas, pollutants and emission sources that should be considered by regulators when evaluating the health risks posed by airborne hazardous pollutants.
In the March 10, 2011 edition of the Federal Register, the United States Environmental Protection Agency (EPA) issued the final rule adding 10 new sites to the National Priorities List (NPL). EPA also issued a proposed rule to add 15 new sites to the list of those sites that it proposes to add to the NPL in the future.
The NPL is authorized by the Comprehensive Environmental Response, Compensation and Liablity Act, 42 U.S.C. 9601, et seq (also known as Superfund). Only EPA is allowed to propose and finalize the sites on the NPL, which it determines: (1) based on the ranking of a site with a score of 28.50 or higher under the agency's Hazard Ranking System (40 CFR part 300); (2) if a site is designated by a state as its top priority site (40 CFR 300.452(c)(2); or (3) if EPA determines, without using the HRS, that the site poses a significant threat to public health based on a health advisory issued by the Agency for Toxic Substances and Disease Registry (ATSDR) and EPA believes that remedial action is more cost-effective than removal action at the site (40 CFR 300.452(c)(3). The NPL includes those sites with known or threatened releases of hazardous substances that may present an imminent or substantial danger to public health or welfare. The NPL is to guide EPA's priorities for further investigatory and remedial action, but is not a determination of any party's liability. The NPL is divided between sites that EPA may address and those owned or operated by other federal agencies, which then will be addressed by those agencies.
The ten new sites on the NPL are:
Gabrielle Sigel and William Kaplowitz, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Climate Change Update Resource Center their February 2011 Update of Climate Change developments. Of note in this month's update is a report on the establishment of Wind Energy Areas off the Mid-Atlantic coast and summaries of environmental and energy funding in the proposed 2012 budget and in the continuing resolution that would fund the federal government for 2011.
Click here to read the February 2011 Climate Change Update.
On March 1, 2011, the EPA announced it is extending this year's annual reporting deadline – originally March 31 – for greenhouse gas emissions. In a news release, EPA stated that "it is in the process of finalizing a user friendly online electronic reporting platform" and that the "extension will allow EPA to further test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting." EPA 3/1/2011 News Release. EPA plans to have the electronic reporting tool "available this summer, with the emissions data to be published later this year."
On October 30, 2009, EPA published a rule for the mandatory reporting of greenhouse gases ("GHG") (40 CFR part 98) from large GHG emissions sources in the United States. Implementation of 40 CFR Part 98 is referred to as the Greenhouse Gas Reporting Program ("GHGRP"). In general, the threshold for reporting is 25,000 metric tons or more of carbon dioxide–equivalent per year. About 10,000 facilities covered by the rule had to begin measuring GHG emissions on January 1, 2010.
EPA plans to provide more detail "in the coming weeks" and ensure that the extension is officially in effect before the original reporting deadline of March 31, 2011.