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January 2014

Pollution Control Board Denies Rulemaking For Coal/Coke…For Now

Schriftman_Seth_COLORBy:  Seth J. Schriftman

 

On January 23, 2014, the Illinois Pollution Control Board (“IPCB”) denied a motion for emergency rulemaking regarding coal and coke processing, transport, storage, and handling, which was submitted by the Illinois Environmental Protection Agency (“IEPA”) only a week earlier.  Within the several days between the filing and ruling, the IPCB received 34 written comments from industry groups, environmental groups, the City of Chicago, Illinois House Representatives, and others, all voicing their opinions for and against the proposed emergency rules.  Criticisms and critiques were plentiful.  Many industry groups expressed their concerns about the economic feasibility of abiding by such rules and did not believe the circumstances necessitated an “emergency.” Conversely, environmental groups applauded the rules and offered  potential suggestions for additional improvement.  Additionally, in its response, the City of Chicago expressed that it is currently seeking comments (until February 7, 2014) on its own proposed regulations regarding petroleum coke.  In the end, the motion was denied, primarily because the issues described were not deemed to be an “emergency” according to IPCB Rules and case precedent.  However, in denying the IEPA’s motion, the IPCB was clear that such rules, in a future form, may soon be promulgated through the regular rule-making process.

As background, as defined by the IEPA, “coke” is “solid, carbonaceous material derived from the distillation of coal,” including metallurgical coke (“metcoke”).  The term “coke” is also used to describe materials derived from “oil refinery coker units or other crackling units or other crackling processes,” including petroleum coke (“petcoke”).  Coke is used as alternative fuel in coal-fired power plants and cement kilns. 

In its motion, the IEPA asserted that dust from both coke and coal is a type of fugitive particulate matter (“PM”) that is subject to National Ambient Air Quality Standards (“NAAQS”), and that exposure to PM can lead to serious health consequences, including cardiovascular and respiratory effects.  The IEPA asserted that an emergency existed to warrant its motion, because:

-          large clouds of black dust had travelled beyond the boundaries of coal/coke facilities into nearby neighborhoods and schoolyards;

-          coke and coal dust had accumulated on lawns, pools, vehicles, building siding, and furniture; and

-          coke and coal dust had been blown onto residences, schools, and businesses on a daily basis, which would make residents avoid opening windows or engaging in outdoor activities. 

Although the proposed rules would have applied State-wide, the catalyst for these proposed regulations appears to have been several bulk storage terminals located in Cook County.  The emergency rules (which would have been temporary, expiring after 150 days) were aimed at providing 1) fugitive dust controls, 2) water pollution controls, and 3) hazardous waste determinations.  For example, these rules would have required that all coke and coal storage piles be enclosed within two years (with an enclosure plan to be submitted to the IEPA within 45 days of the rule effective date), the creation of a Coke and Coal Fugitive Dust Plan within 45 days, piles of coal and coke would have to meet certain height and width restrictions, coal and coke would have to be placed on impermeable pads with certain setbacks from water sources within 60 days, necessary wastewater and storm water runoff permits would have to be applied for within 45 days, only paved roads could used for transport within 90 days, there would be cover, wind, and speed restrictions on when and how coal and coke could be transported, and there would be additional monitoring and equipment modification requirements.

In the IPCB’s Opinion and Order of the Board (the “Opinion”), which thoroughly summarized the IEPA’s motion, the comments received, and the IPCB’s analysis, the IPCB decided unanimously (4-0) to deny the IEPA’s motion to enter the proposed emergency rules. The IPCB held that the IEPA had failed to demonstrate that a situation existed which constituted a threat to the public interest, safety, or welfare.  However, the IPCB admitted that “the rules governing bulk terminal operations for petcoke and coal could be improved” and that the IEPA’s proposal would benefit by proceeding through the regular rulemaking process. Thus, it appears that these emergency rules may provide a starting point for further non-emergency rulemaking regarding the processing, transport, storage, and handling of coal and coke materials in Illinois in the near future.


Department of Defense Publishes Proposed Rule Regarding Storage, Treatment, and Disposal of Toxic or Hazardous Materials

Essig_Genevieve_COLORBy:  Genevieve Essig

 

Yesterday, the Department of Defense published proposed rule 79 CFR 4648 (Jan. 29, 2014), which relates to DFARS regulations on the storage, treatment, and disposal of toxic or hazardous materials.  The rule in essence seeks to catch up 48 CFR 223.71, which contains a prohibition on the storage and disposal of non-DoD-owned toxic or hazardous materials on DoD installations and exceptions to that prohibition, as well its associated contract clause at 48 CFR 252.223-7006, to the current version of the underlying statute 10 U.S.C. 2362 (Storage, Treatment, and Disposal of Nondefense Toxic and Hazardous Materials).   10 U.S.C. 2362 has been revised and updated a number of times without corresponding changes being made in the regulations.  The rule revises, reorganizes, and renumbers various existing provisions, as well as adds a handful of new provisions.  Some examples of the more substantive updates are as follows:

  1. The word “treatment” is added in several places to ensure that the prohibition applies not only to the storage and disposal of toxic/hazardous materials but also their treatment.  The modifier “toxic and hazardous” is also updated to “toxic or hazardous.”
  2. A number of changes are made to the enumerated list of exceptions to the prohibition provided in 223.7102 (redesignated 223.7104). E.g.:
    • New subparagraph (a)(1) provides a new exception for the storage, treatment or disposal of materials “used in connection with an activity of DoD or in connection with a service performed on a DoD installation for the benefit of DoD.”
    • New subparagraph (a)(11) provides a new exception for storage where the material is “required or generated in connection with the use of a space launch facility located on a DoD installation or on other land controlled by the United States.
    • Existing (a)(2) (redesignated (a)(3)) is revised to expand the existing exception to situations involving State or local law enforcement (instead of just Federal law enforcement).
    • Existing (a)(8) (redesignated (a)(9)) is revised to remove the reference to “by a private person,” expanding the existing exception to material “required or generated in connection with the authorized and compatible use of a facility of DoD.”  Such uses include “testing material or training personnel."
    • Existing (a)(9) (redesignated (a)(10)) is similarly revised to expand the existing exception to material “required or generated in connection with the authorized and compatible use of a facility of that military department.” Potential qualifiers “by private person” and “commercial use” are removed.
    • Paragraph (b) is revised to add the requirement that the Secretary Defense, in granting exceptions to the prohibition “when essential to protect the health and safety of the public from imminent danger,” must find that the exception is essential and that the storage or disposal authorized “does not compete with private enterprise."
  3. A new section 223.7105 adds that the Secretary may assess a charge for any storage or disposal provided under the subpart (to be identified in the contract).
  4. Section 223.7103 (redesignated 223.7106) on the contract clause is revised to broaden the clause application to include all solicitations and contracts that “require, may require, or permit contractor access to a DoD installation.”
  5. The basic contract clause at 252.223-7006 is revised to account for the storage/disposal charge authorized in 223.7105 and to require flowdown of the substance of the clause to “all subcontracts that require, may require, or permit a subcontractor access to a DoD installation” (any subcontract tier).
  6. The flowdown provision of the alternate contact clause at 252.223-7006 is similarly expanded to “all subcontracts that require, may require, or permits a subcontractor access to a DoD installation” (any tier).  It is also clarified that such flowdown does not relieve the contractor of liability to the Government.

Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy:  Alexander J. Bandza

 

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of January 27, 2014), click here.

I.          FILED

(None.)

II.         DENIED

FINR II, Inc. v. CF Industries, Inc., No. 13-636

Lower Court: Florida First District Court of Appeal

Subject: Due Process Clause

Question(s) Presented: Does the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution guarantee a private property owner the right to present evidence in a state administrative hearing concerning the impacts of activities authorized under a state environmental permit on its property rights?

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-636.htm

Bankert v. Bernstein, No. 13-568

Lower Court: 7th Cir.

Subject: CERCLA

Question(s) Presented: (1.) Whether the triggering event for a right to contribution under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(3)(B), occurs at the completion of environmental clean-up order under a consent decree with the United States as opposed to the entry of the settlement. (2.) Whether contribution rights under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f)(3)(B), are unavailable to a potentially responsible party when that potentially responsible party enters into a settlement decree with the United States but has not yet fully performed its settlement obligation, but has an effective covenant not to sue if it complies with the settlement. (3.) Whether the Respondents' Indiana state law claims were barred by the statute of limitations.

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-568.htm

III.        GRANTED

(None.)


U.S. Supreme Court Declines To Review 7th Circuit CERCLA Case

Torrence_Allison_COLORBy:  Allison A. Torrence

 

The U.S. Supreme Court has denied cert in the widely-followed case of Bernstein v. Bankert, No. 13-568, declining to review the Seventh Circuit's ruling on the availability of CERCLA cost recovery and contribution actions following entry of an Administrative Order on Consent ("AOC") with U.S. EPA. The Seventh Circuit originally ruled on this case on December 19, 2012, and then issued an Amended Opinion on July 31, 2013, in order to clarify its opinion. As discussed previously in this blog, the Seventh Circuit addressed, among other things, the circumstances in which a plaintiff can bring a contribution claim under section 113 of CERCLA verses a cost recovery claim under section 107 of CERCLA. The Seventh Circuit held that the plaintiff did not have a contribution claim under section 113 of CERCLA because the AOC at issue did not resolve the plaintiff's liability until the remediation work was completed and the covenant not to sue from U.S. EPA was effective (which had not yet occurred). Because the plaintiff did not have a CERCLA 113 claim, the court held that it could pursue a cost recovery claim under section 107 of CERCLA. The court's amended opinion explained that although the AOC in the Bernstein case did not trigger contribution rights because the covenant not to sue was not effective until remedial work was completed, U.S. EPA can enter into settlement agreements with future parties that contain an immediately-effective release from U.S. EPA, in which case, the party will have resolved its liability and could seek contribution under section 113 of CERCLA.

Now that the U.S. Supreme Court has denied cert, Bernstein is the law in the Seventh Circuit. When a party to a CERCLA AOC with U.S. EPA seeks to recover the costs it has incurred under that AOC, trial courts in the Seventh Circuit will have to closely evaluate the terms of the AOC to determine what type of CERCLA claim can be brought. If the AOC does not have an immediately-effective release from U.S. EPA, the courts will likely find that contribution is not ripe, and that the party to the AOC should instead bring a section 107 cost recovery action.

To date, no other circuit court has taken a position similar to the Seventh Circuit. However, federal courts across the county continue to see numerous CERCLA cases and other circuit courts will likely be called on to address issues similar to those in Bernstein in the near future. Litigants will continue to challenge the boundaries and intersection of CERCLA 107 and 113 claims, and these issues may very well be back before the Supreme Court before long.


OMB Extends SCC Comment Period

Grayson_Lynn_COLORBy:  E. Lynn Grayson

 

Yesterday, OMB extended the comment period on its revisions of the Social Cost of Carbon technical document for an additional 30 days, to February 26, 2014, to permit commenters adequate time to review the document and related information in the scientific literature. The technical document affects the analysis underlying agency and OMB benefit / cost review and, therefore, will affect most economically significant and major rules.

On November 26, 2013, the OMB invited public comments on the Technical Support Document entitled Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866. That request may be found at 78 FR 70586. OMB now requests that comments be submitted electronically to OMB by February 26, 2014 through www.regulations.gov.

The Social Cost of Carbon (SCC) is used to estimate the value to society of marginal reductions in carbon emissions. The Technical Support Document (TSD), available at: http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/technical-update-social-cost-of-carbon-for-regulator-impact-analysis.pdf, explains the derivation of the SCC estimates using three peer reviewed integrated assessment models and provides updated values of the SCC that reflect minor technical corrections to the estimates released in May of 2013. In order to allow commenters adequate time to review the TSD and related information in the scientific literature that they may wish to consider to inform their comments, OMB is extending the comment period by 30 days.

Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy:  Alexander J. Bandza

 

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert petitions submitted from August 2013 through the present (as of January 20, 2014), click here.

I.    FILED

Village of Hobart v. Oneida Tribe of Indians of Wisconsin, No. 13-847

Lower Court: 7th Cir.

Subject: Clean Water Act

Question(s) Presented: (1.) Whether Congress' waiver of the federal government's sovereign immunity, under § 313(a) of the CWA, for enforcement of local stormwater management ordinances, for "any property" over which it has "jurisdiction," applies to land taken into trust pursuant to 25 U.S.C. § 465. (2.) Whether lands acquired by an Indian tribe pursuant to 25 U.S.C. § 465, within its former *ii reservation boundaries are, removed from state jurisdiction because, as the Seventh Circuit ruled, they are reclassified as "Indian Country."

Source: http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-847.htm

In re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, No. 13-842

Lower Court:  2d. Cir.

Subject: Clean Air Act

Question(s) Presented: (1.) Whether a claim is ripe when it is predicated on a plaintiff's potential future injury and mere good faith intent to take steps in 15 to 20 years that could, depending on a chain of uncertain events, cause the plaintiff to suffer an actual injury some day in the future. (2.) Whether the federal oxygenate mandate in the Clean Air Act Amendments of 1990, 42 U.S.C. § 7545 (2000), preempts a state-law tort award that imposes retroactive liability on a manufacturer for using the safest, feasible means available at the time for complying with that mandate.

Source: http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-842.htm

II.    DENIED

Chubb Custom Ins. Co. v. Space Systems/Loral, LLC, No. 13-412

Lower Court: 9th Cir.

Subject: CERCLA

Question(s) Presented: May a subrogated insurer, after paying environmental response costs its insured incurred remediating a contaminated site, step into the insured's shoes and pursue, against the persons responsible for the pollution, the cost-recovery action its insured could have pursued under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) section 107(a), or did Congress intend, as the Ninth Circuit's divided panel has held here, to restrict CERCLA subrogation rights in such circumstances to persons who compensate "claimants" under section 112, compelling insured remediators to satisfy a pre-suit claim requirement that was enacted to apply only to persons who seek reimbursement from the Superfund, not to civil actions under section 107(a).

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-412.htm

American Road & Transp. Builders Ass'n v. EPA, No. 13-145

Lower Court: D.C. Cir.

Subject: Clean Air Act

Question(s) Presented: (1.) Does [CAA] §307(b)(1) allow petitioning for direct review within 60 days of the denial of a [5 U.S.C.] §553(e) petition that presents after-arising issues? (2.) Does §307(b)(1) prohibit indirect review of an agency rule - outside the original 60-day window - if made as part of a timely challenge to new agency action that applies the prior rule?

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-145.htm

III.    GRANTED

(None.)


EU Evaluates Banning Flame Retardants and Phthalates In Electronic And Electrical Goods

Siros_Steven_COLORBy:  Steven M. Siros

 

In light of a recent study conducted on behalf of the European Commission (which is the executive body of the European Union (EU) responsible for proposing legislation), the Commission is expected to ban certain phthalates and flame retardants in electronic and electrical goods. More specifically, the Commission is expected to add a flame retardant (hexabromocyclododecane) and three phthalates (bis (2-ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), and dibutyl phthalate (DBP)) to Annex II of the Restriction of Hazardous Substances Directive (RoHS). Under RoHS, Annex II chemicals are banned in electronic and electrical goods in excess of .1% weight.

 The addition of these specific chemicals to the RoHS Annex II would most directly impact importers of electronic and electrical equipment into the EU as EU's REACH program has already banned the use of these chemicals in the EU after February 21, 2015 (unless specific use authorizations are obtained). As a general matter (subject to several exceptions), importers of electronic and electrical goods into the EU are not currently subject to REACH. However, compliance with RoHS is mandatory for all products produced and/or imported in the EU.

In reality, however, manufacturers of any product that contains phthalates would be well advised to take steps to ensure that the phthalate content in those products is below the .1% weight threshold.  Numerous regulatory bodies have already banned phthalates in excess of the .1% weight threshold.  For example, California's Prop. 65 regulations require notification where the phthalate content exceeds .1% in products sold in California.


Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy:  Alexander J. Bandza

 

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, the following EHS-related petitions have been filed, denied, or granted. For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of January 12, 2014), click here.

I. FILED

Simmons v. Sabine River Authority, No. 13-815

Lower Court: 5th Cir.

Subject: Federal Power Act

Question(s) Presented: "Whether the Federal Power Act preempts Petitioners' property damage tort and takings claims caused by the operation of the licensee of a FERC-licensed dam project, where the provisions of the FPA have explicitly saved and reserved such claims to the property owners."

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-815.htm

II. DENIED

(None.)

III. GRANTED

CTS Corp. v. Waldburger, No. 13-339

Lower Court: 4th Cir.

Subject: CERCLA

Question(s) Presented: "For certain state-law tort actions involving environmental harms, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts the state statute of limitations' commencement date and replaces it with a delayed commencement date provided by federal law. . . . The question presented is: Did the Fourth Circuit correctly interpret 42 U.S.C. § 9658 to apply to state statutes of repose in addition to state statutes of limitations?"

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-339.htm


NIOSH Issues Updated Nanotechnology Research And Guidance Plan

Schriftman_Seth_COLORBy:  Seth J. Schriftman

 

In December 2013, the National Institute for Occupational Safety and Health (NIOSH or "the institute") released its most updated nanotechnology strategic plan - Protecting the Nanotechnology Workforce: NIOSH Nanotechnology Research and Guidance Strategic Plan, 2013-2016 (the "Plan"). Nanotechnology involves the manipulation of matter on a near-atomic scale to produce new materials and devices. Many of these materials are already in commerce in products ranging from cosmetics, to clothing, to industrial and biomedical applications. The benefits of nanotechnology are vast, as this technology can help address global problems concerning energy, transportation, pollution, health, and food. The economic impact is also great. In fact, the National Science Foundation estimates that, by 2020, nanotechnology will have a $3 trillion impact on the global economy and employ 6 million workers in related product manufacturing.

However, the development of nanotechnology and related materials presents new challenges to understanding and managing potential employee health and safety risks. Specifically, the Plan discusses how "[m]any knowledge gaps still remain on how to work safely with all of these [nano]materials." NIOSH had previously created a series of reports and publications based on its research to address health and safety hazards related to this technology. This research identified adverse health effects in animals exposed to various nanomaterials, assessed exposure to workers, initiated epidemiologic research, and provided guidance on control technologies and medical surveillance. But, the Plan notes how, given the advanced nanomaterials currently under development, there are likely additional potentially hazardous characteristics that will need to be addressed in the future. In this regard, NIOSH's expressed goal is to continue to provide solutions that will prevent work-related illness and injury. Thus, the Plan stresses how timely and targeted research is needed to define hazards, exposures, and risks, and to provide guidance for the safe handling of nanomaterials.

Notably, the NIOSH Nanotechnology Research Center (NTRC) was established in 2004 to coordinate nanotechnology across the institute. Its mission has been to provide national and world leadership for research and guidance on the implications of nanomaterials for work-related injury and illness, and for the application of nanomaterials in occupational safety and health. Ten critical areas of research have been identified, and the Plan contemplates expanding research activities in these areas: toxicity and internal dose; measurement methods; exposure assessment; epidemiology and surveillance; risk assessment; engineering controls and personal protective equipment (PPE); fire and explosion safety; recommendations and guidance; global collaborations; and applications. Additionally, the Plan focuses on addressing five NIOSH NTRC strategic goals:

  1. Increasing the understanding of new hazards and related health risks to nanomaterial workers;
  2. Expanding the understanding of the initial hazard findings of engineered nanomaterials;
  3. Supporting the creation of guidance materials to inform nanomaterial workers, employers, health professionals, regulatory agencies, and decision-makers about hazards, risks, and risk management approaches;
  4. Supporting epidemiologic studies for nanomaterial workers, including medical, cross-sectional, prospective cohort, and exposure studies; and
  5. Assessing and promoting national and international adherence with risk management guidance.

In sum, as outlined in its new Strategic Plan, NIOSH will continue to use its resources and partner with others to efficiently and effectively protect the nanotechnology workforce to ensure the responsible development of this new and ever-evolving technology.

To view the Plan, please click here.


EPA Issues Final Rule Confirming New ASTM E1527-13 Standard Will Meet “All Appropriate Inquiries” Under CERCLA, Older ASTM E1527-05 Standard Still Good . . . For Now

Bandza_Alexander_COLORBy:  Alexander J. Bandza

 

On December 30, 2013, the US EPA issued its final rule confirming that the new ASTM E1527-13 standard, in addition to the older ASTM E1527-05 standard, is acceptable for prospective purchasers of real property to conduct "All Appropriate Inquiries" (AAI) under CERCLA. The Final Rule can be found here and became effective on December 30, 2013. In conjunction with the Final Rule, the US EPA issued its responses to comments, available here.

By way of background, the US EPA previously proposed regulations that would endorse E1527-13 as an additional industry standard to satisfy AAI. Specifically, entities would have the option of using E1527-13, but were still free to follow E1527-05. Anticipating that offering an additional AAI-compliant standard would be a noncontroversial action, the US EPA issued its proposed rule and an identical direct final rule in August 2013. However, after receiving adverse comments, the US EPA withdrew its direct final rule in October 2013. In general, the comments reflected a concern that the availability of both standards would create uncertainty as to the degree of due diligence necessary to satisfy AAI.

In issuing the Final Rule, the US EPA took the middle road. First, it confirmed that the newer E1527-13 standard would satisfy AAI, although it left untouched the AAI rule's endorsement of the older E1527-05 standard. Second, the US EPA stated its intent to propose a separate rulemaking to amend the AAI rule to remove the reference to the older E1527-05 standard. However, in this Final Rule, the US EPA recommended that prospective purchasers start using the E1527-13 standard now in light of its improvements and clarifications. According to the US EPA, these improvements and clarifications include:

  • an updated definition of ''Recognized Environmental Condition (REC)";
  • an updated definition of ''Historical Recognized Environmental Condition (HREC)";
  • a new term, ''Controlled Recognized Environmental Condition (CREC)";
  • a clarification to the definition of ''de minimis condition";
  • a revised definition of ''migrate/migration'' to specifically include vapor migration;
  • a revised definition of ''release'' to clarify that the definition has the same meaning as the definition of release in CERCLA; and
  • additional guidance related to the regulatory agency file and records review requirement to provide a standardized framework for verifying agency information obtained from key databases.

In sum, practitioners advising clients on real property transactions must recognize that they now operate in a transitional period. As of today, the Final Rule confirms that both the new E1527-13 standard and the older E1527-05 standard will satisfy AAI. But, in the near future, a proposed rulemaking might eliminate the possibility of using the older E1527-05 standard to satisfy AAI. Accordingly, practitioners are encouraged to begin transitioning to E1527-13 as soon as practicable. And if their environmental consultants continue to use E1527-05 for due diligence in a real property transaction, practitioners should make it a point to confirm whether the older standard still satisfies the AAI rule.

We will provide updates on further developments when they become available.


USACE Issues Long Awaited Great Lakes/Asian Carp Report

Grayson_Lynn_COLORBy:  E. Lynn Grayson

 

The U.S. Army Corps of Engineers this week submitted to Congress the Great Lakes and Mississippi River Interbasin Study (GLMRIS) report detailing a range of options and technologies to prevent the transfer of aquatic nuisance species (ANS) between the Great Lakes and Mississippi River basins through aquatic pathways. At issue is blocking the infamous Asian carp from entering the Great Lakes and adversely impacting the sensitive ecosystems present there.

The report contains eight alternatives, each with concept-level design and cost information, and evaluates the potential of these alternatives to control the transfer of a variety of ANS. The options concentrate on the Chicago Area Waterway System (CAWS) and include a wide spectrum of alternatives ranging from the continuation of current activities to the complete separation of the Great Lakes and Mississippi River basins. The GLMRIS Report also includes an analysis of potential impacts to uses and users of the CAWS, and corresponding mitigation requirements for adverse impacts to functions such as flood-risk management, natural resources, water quality, and navigation.

The alternatives presented in the report include:

  1. Continuing current efforts (i.e., the electric barriers) with "No New Federal Action – Sustained Activities."
  2. Nonstructural control technologies (i.e., education, monitoring, herbicides, ballast water management).
  3. A technology concept involving a specialized lock, lock channel, electric barriers and ANS treatment plants at two mid-system locations in the CAWS.
  4. A technology concept (CAWS buffer zone) using the same technologies as number 3, preventing downstream passage from Lake Michigan at five points and preventing upstream passage at a single point at Brandon Road Lock and Dam.
  5. Lakefront hydrologic separation with physical barriers separating the basins at four locations along the lakefront of Lake Michigan.
  6. Mid-system hydrologic separation with physical barriers separating the basins at two mid-system locations.
  7. A hybrid of technology and physical barriers at four mid-system locations, leaving the Cal-Sag channel open.
  8. A hybrid of technology and physical barriers at four mid-system locations, leaving the Chicago Sanitary and Ship Canal open.

Separating the Great Lakes and the Chicago River (again) could cost more than $18 billion and take up to 25 years making this option the most expensive alternative. Despite the significant costs and extended time lines detailed in the report, some believe these efforts may be too late. Asian carp DNA has been found near Lake Michigan in the past and more carp DNA was discovered last year in Sturgeon Bay in Northern Michigan – 250 miles from areas of the Illinois River where Asian carp are known to spawn. Asian carp were imported to the U.S. in the 1970s to help fish farmers clean algae from their ponds. The fish escaped during floods and slowly have been eating their way up the Mississippi and Ohio Rivers.

Interested parties cannot agree on exactly the next best step to take to protect the Great Lakes from an Asian carp invasion. Everyone agrees, however, that action must be taken soon and any meaningful effort will be an expensive undertaking.

GLMRIS plans to host a series of public meetings to discuss the contents of the report and allow for public comment. These meetings have been scheduled for the following dates and locations:

  • Chicago, IL – Thursday, January 9, 2014
  • Milwaukee, WI – Monday, January 13, 2014
  • Cleveland, OH – Thursday, January 16, 2014
  • Ann Arbor, MI – Tuesday, January 21, 2014
  • Traverse City, MI – Thursday, January 23, 2014
  • Twin Cities, MN – Monday, January 27, 2014
  • St. Louis, MO – Thursday, January 30, 2014

To view the report, summary, details on the public meetings, register to speak or to make an online comment, go to www.glmris.anl.gov. Comments will be accepted until 30 days following the last public meeting, or March 3, 2014.


Sale Of Hazardous Materials On Craigslist Triggers CERCLA Liability

Siros_Steven_COLORBy:  Steven M. Siros

 

In 2006, a small screen print shop owner advertised a semi-trailer for sale on Craigslist. For $900, a buyer could purchase the trailer by itself. However, for $300 less, the trailer could be purchased "as is." "As-is" turned out to be a trailer filled with various containers of screen printing materials (some of which were hazardous materials). In what probably should not come as a surprise, someone bought the trailer "as-is".  The purchaser subsequently emptied the contents of the trailer onto what is now known as the Cherokee Print Shop Wastes Superfund Site in Denver, Colorado. U.S. EPA incurred in excess of $70,000 to remediate the contamination from the now empty trailer.

U.S. EPA commenced enforcement proceedings against the print shop owner to recover its response costs.  U.S. EPA ultimately entered into an ability to pay consent order which required the print shop owner to contribute $600 (the amount received for the trailer) to the $70,000 site cleanup. Click here to see a copy of the court's order approving the consent order.


Environmental & Energy Cert. Petition Watch

Bandza_Alexander_COLORBy:  Alexander J. Bandza

 

As part of the "Environmental & Energy Cert. Petition Watch" project, in the past week, no EHS-related petitions have been filed, denied, or granted. The following three EHS-related petitions are set for conference early next year (Jan. 10, 2014). For a full list of EHS-related cert. petitions submitted from August 2013 through the present (as of December 23, 2013), click here.

American Road & Transp. Builders Ass'n v. EPA, No. 13-145

Lower Court: D.C. Cir.

Subject: Clean Air Act

Question(s) Presented: "(1) Does [CAA] §307(b)(1) allow petitioning for direct review within 60 days of the denial of a [5 U.S.C.] §553(e) petition that presents after-arising issues? (2) Does §307(b)(1) prohibit indirect review of an agency rule - outside the original 60-day window - if made as part of a timely challenge to new agency action that applies the prior rule?"

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-145.htm

Chubb Custom Ins. Co. v. Space Systems/Loral, LLC, No. 13-412

Lower Court: 9th Cir.

Subject: CERCLA

Question(s) Presented: "May a subrogated insurer, after paying environmental response costs its insured incurred remediating a contaminated site, step into the insured's shoes and pursue, against the persons responsible for the pollution, the cost-recovery action its insured could have pursued under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) section 107(a), or did Congress intend, as the Ninth Circuit's divided panel has held here, to restrict CERCLA subrogation rights in such circumstances to persons who compensate "claimants" under section 112, compelling insured remediators to satisfy a pre-suit claim requirement that was enacted to apply only to persons who seek reimbursement from the Superfund, not to civil actions under section 107(a)?"

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-412.htm

CTS Corp. v. Waldburger, No. 13-339

Lower Court: 4th Cir.

Subject: CERCLA

Question(s) Presented: "For certain state-law tort actions involving environmental harms, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts the state statute of limitations' commencement date and replaces it with a delayed commencement date provided by federal law. . . . The question presented is: Did the Fourth Circuit correctly interpret 42 U.S.C. § 9658 to apply to state statutes of repose in addition to state statutes of limitations?"

Source: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-339.htm