By: E. Lynn Grayson
EPA has updated and revamped its Enforcement and Compliance History Online (ECHO) website to be more user friendly and flexible. EPA's ECHO website allows for users to search for facilities to assess their compliance with environmental regulations, investigate pollution sources, examine and create enforcement-related maps, or explore a specific state's performance. The legacy ECHO website is scheduled to be retired on November 27, 2013.
The database includes information on environmental inspections, violations and enforcement actions for more than 800,000 regulated facilities. According to EPA, the new interface is better organized and offers options such as collapsible and expandable data sections. The updated website allows users to search for enforcement and compliance data by city, state, or ZIP code, develop their own maps from the data or analyze enforcement trends. The key searches identified on the beta phase site are:
- search for facilities;
- analytics and trends; and
- reports and research.
The ECHO website provides helpful environmental data about certain facilities and the surrounding areas but is only as good as the information available and updated, by and large, by state environmental agencies. The ECHO website has been criticized in the past for outdated environmental information or in some cases, incorrect data.
The new site currently is available at https://www.epa-echo.gov/echo/.
On October 29, 2013, a federal district court judge ordered EPA to submit to the court within 60 days a plan and schedule for finalizing coal ash rules under the Resource Conservation and Recovery Act (RCRA). Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013). Coal ash, also called coal combustion residuals (CCRs), is created as a byproduct of coal combustion at power plants. Coal ash is generally disposed of in either liquid form in surface impoundments or in solid form at landfills and is largely exempt from hazardous waste and solid waste regulations under RCRA.
Recent interest in regulating coal ash waste was prompted by the December 2008 spill at a coal ash storage facility for the Tennessee Valley Authority’s Kingston Fossil Plant. An estimated 1 billion gallons of coal ash slurry was released from the Kingston facility after a retaining wall in the surface impoundment failed. In response to the coal ash spill, in June 2010, EPA proposed to regulate coal ash to address the risks from the disposal of coal ash waste. The 2010 proposed rules provided two options for regulating coal ash: (1) regulate coal ash as a special waste under RCRA’s hazardous waste regulations; or (2) regulate coal ash under RCRA’s non-hazardous solid waste regulations. EPA has received approximately 450,000 comments on these proposed rules and has published additional data on the proposed rules, but has yet to finalize any regulations. Under the solid waste proposed rule, current surface impoundments would have to be retrofitted with new composite liners or cease operations within five years. Existing landfills would not need new liners, but would require groundwater monitoring. In the event that EPA were to elect to regulate coal ash as a special waste, coal ash impoundments or landfills would need RCRA permits and surface impoundments would effectively be phased out of use due to land disposal restrictions. Although EPA has indicated that the second option - regulating coal ash as a non-hazardous solid waste - is the most likely outcome, it has yet to issue final regulations.
After almost four years of inaction on the regulatory front, several environmental organizations sued EPA under the citizens’ provisions of RCRA for failure to finalize its RCRA regulations for coal ash. The environmental groups argued that under the statutory language in RCRA, EPA is required to review and, if necessary, revise hazardous waste and solid waste regulations every three years. Thus, they argued that EPA was required to review its decision not to regulate coal ash as a hazardous waste or solid waste at least every three years, which it has failed to do. In his October 29th Memorandum Opinion, District Court Judge Walton ruled in favor of EPA on a number of counts, holding that coal ash is exempted from RCRA’s general review and revision process for hazardous wastes. Nevertheless, Judge Walton ruled in favor of the environmental groups on the issue of non-hazardous solid waste regulations. Judge Walton held that EPA has a non-discretionary duty to review and, if necessary, revise solid waste regulations concerning coal ash at least every three years. Judge Walton declined to provide a set deadline for EPA to issue its review or regulations. Instead, he ordered EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations under RCRA. EPA must submit this proposed schedule within 60 days (by December 30, 2013), at which point the environmental groups will have an opportunity to file a response to EPA’s proposed schedule.
Members Of Congress Aim To Restrict EPA’s Ability To Set Greenhouse Gas Emission Standards For Fossil Fuel Power Plants
On October 28th, Democratic Senator Joe Manchin (W.Va.) and Republican House Representative Ed Whitfield (Ky.) released a discussion draft bill intended to limit the EPA’s ability to set greenhouse gas emission standards for fossil fuel-fired power plants. The House Energy and Commerce subcommittee that Rep. Whitfield chairs will hold a legislative hearing on the discussion draft on November 14th and hopes to finish consideration of the bill before this session of Congress concludes. Rep. Whitfield said that Janet McCabe, who heads the EPA’s Office of Air and Radiation, is scheduled to testify at that hearing. Sen. Manchin also stated that he believes that the Senate Energy and Natural Resources Committee will consider the bill as well, but he has not yet asked the committee for a hearing.
The draft bill provides that the EPA may not issue or enforce any new legislation under the “Standards of Performance for New Stationary Sources” section of the Clean Air Act unless the EPA establishes separate standards for natural gas and coal-based power plants, sets emission standards that have been proven at six different commercial plants for at least a year, and creates a separate standard for lignite coal. Also, Congress is to set the effective date for standards of performance for existing, modified, and restructured fossil fuel-fired power plants. Further, the EPA would be required to submit to Congress a report containing the proposed rule, the economic impacts of the rule, and the amount of greenhouse gas emissions that the rule is projected to reduce. Finally, the draft bill calls for the repeal of some earlier proposed rules regarding greenhouse gas emissions from such power plants.
As background, this draft bill came after the EPA unveiled its proposed new source performance standards for future power plants on September 20th and had begun soliciting input as it prepares standards for existing power plants. In the meantime, multiple members of Congress, including Rep. Whitfield, have stated that the EPA’s proposed regulations would cost hundreds of thousands of jobs and negatively impact the economies of coal-producing regions across the Unites States.
On October 29th, at a rally for American Energy Jobs, Democratic and Republican members of Congress collectively voiced their concern that overregulation from the EPA is crippling the economy of coal states. At the rally, Sen. Manchin promised to advance the discussion draft bill, which would limit the EPA’s ability to set standards relating to coal-based power plants. Republican Senate Minority Leader Mitch McConnell (Ky.) also has stated that he will do everything possible to stop the EPA’s greenhouse gas emissions standards for power plants, stating that “we’re going to stop this war on coal.” However, some members of Congress have expressed that the EPA is being used as a scapegoat, when the true struggles of the coal industry are due to the rise of cheap natural gas. As Democratic House Representative Henry Waxman (Ca.), ranking member of the Energy and Commerce Committee, has stated: “This isn’t something the government did. This is something the market dictated.”
In lieu of formal notice and comment rulemaking, the Occupational Safety and Health Administration ("OSHA") recently issued new "voluntary" standards for workplace chemical exposure. These new voluntary exposure limits can be found on OSHA's website in a tabular format, allowing for side-by-side comparisons of OSHA's existing permissible exposure limits ("PELs") with these new, voluntary exposure levels recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists.
According to David Michaels, OSHA's existing chemical standards are not adequately protective and he advises employers to utilize these recommended exposure limits "since simply complying with OSHA's antiquated [PELs] will not guarantee that workers are safe." Of course, from a regulatory perspective, OSHA can only enforce its existing PELs. From a toxic tort exposure perspective, however, plaintiffs' counsel are sure to argue that these "voluntary" standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn, compensible). For many chemicals, the difference between the enforceable PEL and the voluntary limit is substantial. For example, the OSHA PEL for tetrachloroethylene is 100 ppm and the new voluntary standard is 25 ppm.
Please click here to see a copy of the OSHA news release on this topic.
The World Health Organization has now classified outdoor air pollution as a human carcinogen. According to a press release from the International Agency for Research on Cancer ("IARC"), based on its review of available scientific literature, there is now sufficient evidence that exposure to outdoor air pollution causes lung cancer. As a result, IARC has classified outdoor air pollution as "carcinogenic to humans". In addition, IARC noted that there was also a positive association between outdoor air pollution and an increased risk of bladder cancer. According to IARC's Director, "[c]lassifying outdoor air pollution as carcinogenic to humans is an important step. There are effective ways to reduce air pollution and, given the scale of the exposure affecting people worldwide, this report should send a strong signal to the international community to take action without further delay." Unfortunately, IARC's press release provides little guidance on how to avoid exposure to what now is a pervasive carcinogenic substance; we will have to stay tuned for more information from the World Health Organization on this important issue.
U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.
The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.
In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.
The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing environmental laws.
Incoming associate Alexander Bandza has been selected by the American College of Environmental Lawyers to receive the prestigious Stephen E. Hermann Environmental Writing Award in 2013. Alex's law school note "Epidemiological Study Reanalyses and Daubert: A Modest Proposal to Level the Playing Field in Toxic Tort Litigation" was awarded first place in this legal writing competition. The note was published in UC Berkeley School of Law's Ecology Law Quarterly.
Next month, Alex will be joining Jenner & Block's Environmental and Workplace Health and Safety Practice Group.
By: Genevieve Essig
State environmental regulators are yet another group that has felt put to the test during the government shutdown. For example, a number of state environmental agencies rely on federal grants, as well as cooperative agreements and interagency agreements with federal agencies, in the administration of their delegated environmental programs. According to EPA’s “Contingency Plan for Shutdown”, EPA has over 7,300 active assistance agreements and over 1,400 active interagency agreements. While the Contingency Plan allows the recipients of most funded grants and cooperative agreements to continue work on their projects during EPA shutdown, payments may be suspended or limited, and, if a project reaches a point requiring EPA involvement or approval, the work must stop. Work under various interagency agreements may also be halted or slowed.
As the shutdown has continued, therefore, states have found themselves forced to cut back on their own activities and even furlough their own staff. Some have tried to cope by reallocating funds among existing grants or covering costs with state funds, but such efforts still result in some programs being deprived and are in any case certainly not sustainable. Further, many state activities require frequent contact with or input from EPA staff, and, as noted above, without EPA being open such activities quickly come to a standstill. Even work not normally requiring EPA involvement such as site inspections and enforcement activities has slowed as states have had to send employees home – within a week of the shutdown, the Wyoming, North Carolina, and Arkansas had already furloughed workers for at least some portion of the work week. Other states, including Maine, Illinois, Arizona, Washington, and Virginia soon followed suit.
Hopefully, the deal announced before the Senate this afternoon will make its way over the necessary hurdles efficiently and bring these programs – and all the others that have been affected – some relief sooner rather than later.
By: Genevieve Essig
Earlier this week, New York’s attorney general Eric Schneiderman, joined by six other states and the Puget Sound Clean Air Agency, filed suit against the U.S. EPA alleging violation of the Clean Air Act with respect to the regulation of new residential wood-burning heaters. These plaintiffs, however, may have to hold their breath, as this case could be among the many matters on EPA’s already often overflowing plate that will just have to wait until the federal governmental shutdown is over and EPA can come back to work.
It is Day 11 of the shutdown, and EPA’s “Contingency Plan for Shutdown” (updated October 1, 2013), is in effect. Nearly 95% of EPA’s approximately 16, 000 employees have been furloughed, leaving only a relative handful of personnel authorized to continue work, as the contingency plan allows only “excepted” activities and approved “exempted activities” to proceed. “Excepted activities” may continue, even in the absence of an appropriation, “because they are authorized by law or fall with the ADA’s emergency exception.” According to the contingency plan, primary examples of such activities include:
- Providing for homeland and national security, including the conduct of foreign relations essential to the national security; or
- Voluntary or personal service necessary to respond to emergencies involving the safety of human life or the protection of property, where the threat to human life or property is imminent, including:
- Activities essential to ensure continued public health and safety, including safe use of food and drugs and safe use of hazardous materials;
- Protection of federal lands, buildings, equipment, research property, and other property owned by the United States;
- Law enforcement and criminal investigations; and
- Emergency and disaster assistance.
Specific examples of excepted activities include protecting research property in EPA’s labs (e.g., looking after the lab animals, plants, and other test organisms) and keeping EPA’s emergency response readiness operations online. With respect to Superfund site work, the contingency plan provides for continued EPA participation in sites “where a failure to maintain operations would pose an imminent threat to human life.” According to an EPA spokesperson on September 30, however, EPA anticipated suspending cleanup work at 505 of the nearly 800 Superfund sites across the country.
As for legal counseling, litigation, and law enforcement activities, law enforcement personnel “that protect human life and property from imminent threat” are excepted “for the time minimally necessary to carry out excepted activities”; attorneys may support excepted or approved exempted work where there is a “necessarily implied authorization,” which exists where “a statute directs a EPA or a governmental entity to perform an activity during a lapse in appropriations and non-performance of an attorney’s support for that activity during the funding lapse would undermine implementation of the terms of that statute.” The contingency plan notes that EPA will follow DOJ’s guidance with respect to the handling of active cases. The DOJ FY 2014 Contingency Plan anticipates the courts remaining open; criminal litigation will continue without interruption, but DOJ will seek to curtail or postpone civil litigation, including that involving EPA, “to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.” Where requests for stays are denied, DOJ will continue to service the litigation.
“Exempted activities” relate to “[c]ertain programs funded with unexpired appropriations where carryover funds remain unobligated or where the source of funds is fees and payments that are available for obligations.” Examples of activities already specifically exempted by the Administrator are programmatic activities funded with leaking underground storage tanks appropriation and activities funded through the BP financed revolving fund. Certain Superfund appropriation activities are exempted as well. The contingency plan states that, except as necessary to support excepted or approved exempted activities, EPA will, among other things, stop incurring new obligations, entering into new contacts, and engaging in certain activities under existing contracts.
During the course of the last 11 days, requests for stays of various kinds have been sought on a number of civil cases involving EPA, though not all successful (e.g., Nat’l Ass’n of Mfrs. v. EPA, No. 13-1069 (D.C. Cir.) – granted 10/8/13; Mississippi v. EPA, No. 08-1200 (D.C. Cir.) – granted 10/4/13; Center for Biological Diversity v. EPA, No. 12-1238 (D.C. Cir.) – denied 10/2/13). In related matters, the Environmental Appeals Board has closed and will not reopen until the shutdown has concluded (parties were not required to file extension motions in advance of the shutdown); and the Federal Register issued a notice that it would only publish documents certified to be “directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property.”
We will continue to provide updates on the government shutdown as they arise.
California Governor Jerry Brown recently signed into law a measure that may curb what many believe to be meritless Proposition 65 claims against certain businesses in California. The current modus operandi for the Proposition 65 plaintiffs' bar in California is to hire people to visit restaurants, bars, and other businesses in the hope that the requisite Proposition 65 warnings have not been posted. A 60-day notice letter is then sent out and in most cases, the targeted business quickly settles the claim with plaintiffs' counsel pocketing a significant percentage of the settlement as "attorneys' fees".
Under the new law, businesses that are targeted by a Proposition 65 plaintiff for allegedly failing to post the requisite warning regarding exposure to alcoholic beverages, tobacco smoke, engine exhaust, and potentially harmful chemicals formed during the cooking process would have 14 days to post the requisite notice and pay a $500 fine. Assuming that the notice is posted within this 14-day period and the fine paid, no further action could be taken by a private plaintiff (it should be noted that this new law would not prohibit the Attorney General from bringing a separate action for violation of the Proposition 65 statute).
Since it will no longer be profitable for the Proposition 65 plaintiffs' bar to bring these types of claims, the expectation is that California restaurants and other similar businesses will no longer be targeted simply for having served a hamburger or operating a parking lot without having posted a warning. Of course, that probably just means that the plaintiffs' bar will focus more attention on other consumer products and businesses would be well served to verify that the products that they sell and distribute in California are compliant with Proposition 65.
According to an October 2013 report completed by the University of Michigan’s Transportation Research Institute, entitled “A Comparison of CAFE Standards and Actual CAFE Performance of New Light-Duty Vehicles,” model year 2013 vehicles have an average fuel economy of 29.8 miles per gallon (mpg). This is an increase in vehicle efficiency of 4.3 mpg from model year 2008 vehicles, which have an average fuel economy of 25.5 mpg.
These findings are the result of recent increased fuel efficiency regulations targeted at reducing greenhouse gas emissions. In 2010, the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHSTA) promulgated a “current standard” for 2012 through 2016 model year vehicles. Subsequently in 2012, the EPA and the NHSTA announced the “new standard” governing new vehicle fuel economy for model years 2017 through 2025. This “new standard” maintains the current system of incremental increases in Corporate Average Fuel Economy (CAFE) requirements for new light-duty vehicles (cars, vans, SUVs, and pickup trucks) for each model year, based on targeted decreases which average approximately 5 percent per year in Carbon Dioxide output per mile. Based on the information available to date on the current standard, CAFE performance has somewhat exceeded the projected levels for 2012 and 2013 model year vehicles. If this trend continues, future CAFE performance is expected to potentially exceed the projected performance levels, which will result in the increased reduction of greenhouse gases beyond the standards set by the EPA and NHSTA.
Looking into the future, these CAFE standards are projected to require average vehicle performance levels of 35.5 mpg (250 grams/mile of Carbon Dioxide) by model year 2016 and 54.5 mpg (163 grams/mile of Carbon Dioxide) by model year 2025. The hope is that meeting and exceeding these achievements will result in simultaneously increasing fuel economy while substantially decreasing greenhouse gas emissions.
Meeting in Stockholm last week, the Intergovernmental Panel on Climate Change (IPCC) released new research from its Fifth Assessment Report – the culmination of six years of research and data analyses since the Fourth Assessment Report was issued in 2007. The IPCC Working Group concluded "… It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. The evidence for this has grown, thanks to more and better observations, an improved understanding of the climate system response and improved climate models."
Warming in the climate system is unequivocal and since 1950 many changes have been observed throughout the climate system that are unprecedented over decades to millennia. Each of the last three decades has been successively warmer at the Earth's surface than any preceding decade since 1850, reports the Summary for Policymakers of the IPCC Working Group I assessment report, Climate Change 2013: the Physical Science Basis, approved last Friday by member governments of the IPCC.
Thomas Stocker, the Co-Chair of Working Group I said: "Continued emissions of greenhouse gases will cause further warming and changes in all components of the climate system. Limiting climate change will require substantial and sustained reductions of greenhouse gas emissions."
Projections of climate change are based on a new set of four scenarios of future greenhouse gas concentrations and aerosols, spanning a wide range of possible futures. The Working Group I report assessed global and regional-scale climate change for the early, mid-, and later 21st century.
The full report will not be released until next year. Part 1, generally the most anticipated part of the IPCC report, deals with scientific assessment. Part 2—on impacts, adaptations and vulnerability, and Part 3—on mitigation.
More information on the IPCC, its work and future meetings is available at https://www.ipcc.ch/.
In what appears to be a case of first impression, a drone operator that had been hired to take aerial photographs for an advertising agency was assessed a civil penalty of $10,000 for operating an "Unmanned Aircraft System" ("UAS") in a careless or reckless manner in violation of Federal Aviation Regulations. According to pleadings filed by the drone operator, the "Unmanned Aircraft System" in question was a five-pound radio-controlled Styrofoam model airplane that was mounted with a small camera. In its complaint, the Federal Aviation Administration ("FAA") alleged that this model airplane was being operated in a reckless manner and being flown at low altitudes near buildings and public streets.
Although the FAA has yet to formally promulgate regulations that would govern UAS operations, the FAA apparently was relying on a 2007 policy statement that requires that UAS that are operated for "commercial" purposes require a "certificate of airworthiness" and be subject to Federal Aviation Regulations. However, the FAA's 2007 policy statement was never formally promulgated as a regulation, according to a motion to dismiss that was filed by the drone operator.
As the private and commercial uses of UAS increase, it will likely only be a matter of time before the FAA promulgates regulations that govern these activities. Since that has not yet occurred, however, it will be interesting to see if the drone operator is successful in getting the civil penalty dismissed. Here are links to the FAA Administrator's Order of Assessment and the drone operator's Motion to Dismiss.
On September 24, 2013, a new organization, the Global Commission on the Economy and Climate (the “Commission”), launched in New York. The Commission will focus its efforts on the economic costs and benefits of acting on climate change. Speakers at the inaugural event included the Chair of the Commission, former President of Mexico Felipe Calderón. Commission Chair Calderón stated: “Climate impacts are rising and the evidence of warming is increasingly clear, but most economic analysis still does not properly factor in the increasing risks of climate change or the potential benefits of acting on it… We need urgently to identify how we can achieve economic growth and job creation while also reducing emissions and tackling climate change.”
The Commission brings together expert research institutes from five continents, and is comprised of a partnership of seven economic and policy research institutes, located in the United States, China, Europe, India, Korea, and Ethiopia. The Commission is also overseen by an International Council comprised of former heads of government and finance ministers and leaders.
The flagship project of the Commission is the compilation of a comprehensive report known as “The New Climate Economy” (the “project”), which is scheduled to be released in September 2014, a year before the culmination of negotiations for a new international climate agreement in Paris in 2015. An advisory panel of world leading economists, including Nobel Prize winning economist Daniel Kahneman, will review the work of the Commission. The project will involve directly engaging with key decision makers in finance ministries and with major businesses and investors, including leading economic organizations, such as the World Bank and International Monetary Fund. The project will also invite contributions from a variety of other leading financial institutions. Once the New Climate Economy project is complete, the Commission plans to take its findings and recommendations directly to heads of government, finance and economic ministers, business leaders and investors throughout the world. The Commission’s aim is to comprehensively address the actions and policies which can simultaneously deliver better economic growth and address climate risks.
For more information, please see the Commission’s website.