On May 31, 2011, the World Health Organization's International Agency for Research on Cancer ("IARC") announced that it was classifying radiofrequency electromagnetic fields as possibly carcinogenic to humans (Group 2b) based on an increased risk for glioma, a malignant type of brain cancer. A working group of 31 scientists from 14 countries have been evaluating the potential carcinogenic effects of radiofrequency electromagnetic fields from occupational exposure to radar and microwaves, environmental exposures associated with radio, television and wireless telecommunications, and personal exposure associated with wireless telephones. The scientists concluded that the evidence indicated that there was "limited evidence of carcinogenicity" among users of wireless telephones for glioma and acoustic neuroma and "inadequate evidence of carcinogenicity" for all other types of cancers. There was also "inadequate evidence of carcinogenicity" for the occupational and environmental exposures. A monograph providing further explanation for IARC's conclusions is expected to be published shortly. IARC's classification is the first time that an international or governmental body has linked electromagnetic fields from cell phones to cancers. Please click here to view IARC's press release.
The New York Times reports that the City of Chicago has been developing plans that will enable the City to adapt to global warming. The City commissioned climatologists to model the impact that global emissions of carbon dioxide could have on Chicago's climate. According to the model, if global emissions continue at their current rate, by the end of the 21st century Chicago will have as many as 72 summer days with high temperatures over 90 degrees; for most of the 20th century, Chicago experienced on average fewer than 15 such days, and the intensity of summer heat predicted by the model is similar to that in the Deep South. A risk assessment firm forecasted that changes of that magnitude could multiply heat-related deaths, increase freezes and thaws that damage buildings, bridges, and roads, and warm winters enough that termites could for the first time survive in Chicago and damage wooden building frames.
U.S. EPA Directs Illinois to Revise Water Quality Standards to Facilitate Recreational Use of the Chicago River
On May 11, 2011, U.S. EPA notified the Illinois Environmental Protection Agency ("IEPA") that Illinois' water quality standards for portions of the Chicago and Calumet Rivers needed to be upgraded to protect the health and safety of persons who utilize these waterways for recreational purposes. Currently, these waterways are designated as Secondary Contact Waters pursuant to 35 Ill. Admin. Code 303.441."Secondary Contact Waters" allow for some recreational uses but those uses are limited to uses where contact with the water is incidental or accidental and the probability of ingesting the water is minimal. Activities such as fishing and commercial and recreational boating are considered allowed uses under this designation. According to U. S. EPA, because there are now numerous opportunities for the public to access these waterways to engage in a variety of recreational activities where there is a potential for more than incidental or accidental contact with the water, Illinois' water quality standards must be modified. U. S. EPA has therefore directed IEPA to promulgate new or revised water quality standards that would be sufficiently protective of recreational activities such as swimming and canoeing on portions of the Chicago and Calumet Rivers. In the event that IEPA does not act on U.S. EPA's determination, U.S. EPA indicated that it will promptly propose new or revised regulations that provide for recreational use in and on these waterways. However, the U. S. EPA letter does not provide details as to how quickly it expects IEPA to act other than to state that IEPA needs to take action as "quickly as possible".
On April 26, 2011, the Bureau of Land Management ("BLM") published a proposed rule that would prevent mining claims from being filed on public lands that BLM has designated for rights of way for wind- or solar-energy projects or for which an application for a right of way is pending. The Mining Law of 1872 prohibits rights of way from materially interfering with a previously located mining claim, and mining claims, unlike rights of way, are presumed valid upon filing, until proven otherwise. Also, mining claims are easy and inexpensive to file, and proving that a mining claim was improperly filed or does not contain a valid discovery is difficult, time-consuming, and costly. Thus, mining claims can tie up pending applications for solar- or wind-energy rights of way and may undercut BLM's efforts to set aside land for future rights of way. Indeed, BLM is concerned that some mining claims were being filed for the sole purpose of disrupting plans for solar- and wind-energy projects in the hope that developers would pay the filers to relinquish the claims. Consequently, BLM proposes to segregate all lands that are designated for wind- and solar-energy rights of way or are involved in a pending application for such a right of way from other public lands that are available for mining claims. The proposed segregation would have no impact on applications for rights of way for other purposes and would not affect valid existing rights in mining claims. On April 26, 2011, BLM also published an interim final rule that immediately segregates land for solar- and wind-power rights of way for two years, until April 26, 2013, while the proposed rule is being considered. Comments on the proposed rule must be received by June 27, 2011.
The proposed rule is available at: https://www.gpo.gov/fdsys/pkg/FR-2011-04-26/pdf/2011-10017.pdf
The interim final rule is available at: https://www.gpo.gov/fdsys/pkg/FR-2011-04-26/pdf/2011-10019.pdf
On April 29, 2011, the United States Court of Appeals for the D.C. Circuit ruled that the U.S. Chamber of Commerce and the National Automobile Dealers Association lacked standing to challenge California's rules for GHG emissions from new vehicles. Chamber of Commerce v. EPA, No. 08-1237 (D.C. Cir. April 29, 2011). Petitioners contended that California lacked justification for promulgating its 2004 standards for fleet-average GHG emissions for new vehicles. They argued that the regulation, which took effect in 2009, would hurt their members in California and other states that have signed onto the California rules because it would increase the manufacturing cost of vehicles and dictate the mix of vehicles with which auto manufacturers would supply them, which could cost them sales if the mix does not match market preferences.
On April 27, 2011, the European Commission (the EU's executive body) announced updates to the EU's Emissions Trading System. Previously, the system was based on fixed national emissions caps, and the vast majority of installations, including electricity generators, received free emissions allowances pegged to their level of historical emissions. This system, however, had the effect of rewarding installations that historically emitted more GHGs with a greater number of free allowances.
EPA Extends Deadlines for Use of Best Available Monitoring Methods for Calculating GHG Emissions from Petroleum and Natural Gas Systems
On April 25, 2011, EPA reconsidered a rule issued in November 2010 and published a new final rule that grants owners and operators of petroleum and natural gas systems three extra months in which to (1) apply for permission to use, (2) use, and (3) seek an extension of permission to use best available monitoring methods ("BAMM") to calculate their GHG emissions, rather than relying on calculation methodologies outlined by EPA. According to EPA, the following sources constitute BAMM: (1) monitoring methods currently used by the facility that do not meet the specifications of the rule; (2) supplier data; (3) engineering calculations; or (4) other company records.
Gabrielle Sigel to Speak At Chicago Bar Association Environmental Law Committee Regarding Chrome Regulation
On May 3, 2011, Gabrielle Sigel, a partner in Jenner & Block's Environmental Law Practice, shall provide a presentation to the Environmental Law Committee of the Chicago Bar Association addressing the overlap in OSHA and EPA regulation regarding chrome use in the workplace. Both OSHA and EPA have detailed regulations regarding chrome emissions in the workplace, employee exposures, and work practices. Ms. Sigel will explore this area of regulation to demonstrate the extent to which these regulations overlap and present significant compliance requirements. The Chicago Bar Association committee meeting will be hosted by Jenner & Block. Further details regarding attendance are provided in the attached announcement.
Gabrielle Sigel is a founding Partner of the Firm’s Environmental Law Practice, Co-Chair of Jenner & Block’s Climate and Clean Technology Law Practice, and a member of the Environmental Litigation Practice. Ms. Sigel regularly represents clients in workplace safety and health enforcement and compliance matters and in complex environmental statutory, common law, Superfund enforcement, toxic tort, and cost recovery actions.