Corporate Environmental Lawyer

D.C. Court of Appeals Grants Stay of Cross-State Air Pollution Rule

By Allison A. Torrence

On December 30, 2011, the United States Court of Appeals for the District of Columbia Circuit granted several parties’ motions to stay in the federal case challenging the United States Environmental Protection Agency’s Cross-State Air Pollution Rule (“Transport Rule”).  The court’s order stops implementation of the Transport Rule two days before it was set to take effect on January 1, 2012.  The Transport Rule has been challenged by several states and private companies in over three dozen cases, which have been consolidated under the first-filed case, EME Homer City Generation, L.P. v. Envtl. Prot. Agency, No. 11-1302 (D.C. Cir. filed Aug. 23, 2011).

The court’s ruling is not a decision on the merits of the case.  Instead, in a two-page opinion, the court held that the “petitioners have satisfied the standards required for a stay pending court review.”  Thus, the Transport Rule is stayed pending the court’s resolution of the various petitions to review the EPA rule.  The court will likely decide on the merits of the challenges to the Transport Rule in the spring of 2012.

Superfund Site Reopened to Address Vapor Intrusion Issues

By Steven Siros

In 1992, a consent decree was entered into between U.S. EPA and two PRPs to address contamination at an NPL site in Mountain View, California.  In June 2001, U.S. EPA certified completion of remediation activities per the 1992 consent agreement.  Almost ten years later, in August 2010, U.S. EPA reopened the ROD, finding that the original remedy was not protective of human health and the environment because it did not address the vapor intrusion pathway.  A ROD amendment was issued and on December 21, 2011, a stipulation to amend the 1992 consent decree was entered which requires the PRPs to undertake additional remedial measures to address the vapor intrusion pathway at the site.

This is likely to become an increasingly frequent scenario as regulatory agencies re-evaluate whether remedial actions that were completed years ago continue to be sufficiently protective of human health and the environment.  In many situations, it is likely that these sites will be reopened and PRPs will be forced to take additional remedial action to address vapor intrusion issues.  To see a copy of the Joint Stipulation to Amend the Consent Decree, please click here.

World Health Organization (WHO) Issues Life Stage Guidance for Risk Assessment

By E. Lynn Grayson

According to WHO, a significant challenge exists with monitoring and assessing individual and population level exposure and risk to environmental chemicals associated with how to consider age and life-stage related changes in behavior and physiology.  Age and life-stage related differences will determine the critical windows of susceptibility as well as the appropriate distribution of exposure factors required to address specific exposure scenarios.  Age and life-stage differences in how individuals interact with the environmental may be a major determinant for identifying those most vulnerable to risks from particular exposures to environmental contaminants.

WHO, through its International Program on Chemical Safety, has developed guidance on these issues and specifically how to systematically identify critical life stages for use in exposure and risk assessment.  The draft guidance, Identifying Important Life Stages for Monitoring and Assessing Risks from Exposure to Environmental Contaminants, was prepared by a group of experts convened by WHO.  WHO is accepting comments on this draft guidance through January 31, 2012.

WHO is the directing and coordinating authority for health within the United Nations system.  It is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends.

CCX Sued For Fraud

By Steven M. Siros

On December 14, 2011, a group of investors that purchased trading privileges on the Chicago Climate Exchange ("CCX") sued the CCX and its founders, alleging fraud and violations of Illinois' Consumer Fraud and Deceptive Business Practices Act. The lawsuit, which was filed in Illinois state court, contends that defendants falsely represented that only a limited number of trading privileges would be sold and once these privileges were sold, the privileges would be freely transferable. The CCX was acquired by Intercontinental Exchange ("ICE") in April 2010. In August 2011, ICE announced that due to low trading volume on the CCX (attributable to the failure to pass federal cap and trade legislation), the exchange would operate through first quarter 2012 and then shut down. In their lawsuit, plaintiffs allege that they would not have purchased trading privileges on the CCX had they been aware that the privileges would ultimately not be marketable. To see a copy of the complaint, please click here.

New EPA Draft Report Links Contaminants Found In Groundwater To Fracking

By Steven M. Siros

On December 8, 2011, the United States Environmental Protection Agency ("U.S. EPA") issued a draft report noting a need for the collection of more baseline data, greater transparency on the chemical composition of fracking fluids and more care to be exercised with respect to well construction and testing.  The draft report was issued following U.S. EPA's November 9, 2011 release of the preliminary findings of an investigation it conducted near the town of Pavillion, Wyoming which found the presence of chemicals commonly used in fracking (benzene, naphthalene and diesel) in groundwater in the vicinity of 169 natural gas production wells.

Although the draft report recommends additional testing to determine the vertical and horizontal extent of the contamination, the draft report is important for its conclusion that fracking fluids are the likely source of the contamination of the Pavillion drinking water aquifer (after having ruled out agricultural chemicals as a potential contamination source). The draft report is already attracting significant attention. Senator James Inhofe has already gone on record criticizing the draft report, noting that "this announcement is part of President Obama's war on fossil fuels and his determination to shut down natural gas production…. It is irresponsible for EPA to release such an explosive announcement without objective peer review." On the other hand, environmental groups such as the Natural Resources Defense Council have lauded the report as an acknowledgement of its position that fracking poses a significant environmental threat.

Beginning on December 14, 2011, the draft report will undergo a 45-day public comment period and a 30-day peer review process (although not the more heightened peer review that would be required if the draft report were considered a highly influential scientific study).

DOE Reports That EPA’s New Air Pollution Rules Will Not Hinder Electricity Reliability

By Allison A. Torrence

The United States Department of Energy ("DOE") has issued a report titled "Resource Adequacy Implications of Forthcoming EPA Air Quality Regulations." The DOE report evaluates two United States Environmental Protection Agency ("EPA") regulations: (1) the Cross-State Air Pollution Rule ("CSAPR") and (2) the Mercury and Air Toxics Standards ("MATS").

The DOE report summarized the two rules as follows:

CSAPR creates multiple trading systems to control the emissions of NO_x and SO₂ from electric generators, and MATS imposes emissions rate standards on coal and oil-fired electric generators for mercury, acid gases and particulate matter. The trading systems for CSAPR begin in 2012, with the limits tightening for sources in some states in 2014. The first year of compliance for MATS is 2015, subject to potential extensions discussed in this report.

DOE concludes that looking at a stringent test case, which was more conservative than actual anticipated conditions, the overall supply-demand balance for electric power would be adequate following the implementation of CSAPR and the proposed MATS rules.