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July 2014

GAO Finds EPA Needs to Better Protect Drinking Water from Fracking Activities

Essig_Genevieve_COLORBy: Genevieve Essig

 

This week the U.S. Government Accountability Office (GAO) released a report entitled “Drinking Water: EPA Program to Protect Underground Sources from Injection of Fluids Associated with Oil and Gas Production Needs Improvement,” in which the GAO reviews EPA’s oversight of its Underground Injection Control (UIC) class II program.  According to the GAO, over 172,000 fluid injection wells used in conjunction with oil and gas production or related disposal/storage activities are subject to regulation under this program and approved state class II programs.  The GAO observes, “Because a significant percentage of the population gets its drinking water from underground aquifers, these wells have raised concerns about the safety of the nation’s drinking water.” (1).

 The GAO’s main findings and recommendations are as follows:

  • In the eight state programs reviewed, the existing safeguards for protecting against contamination of underground sources of drinking water do not address certain new risks that have emerged, such as induced seismicity, overpressurization of formations, and use of diesel fuels as chemical additives in hydraulic fracturing (fracking) operations.  GAO recommends tasking the UIC Technical Working Group with reviewing such emerging risks and related safeguards.
  • EPA does not consistently conduct annual onsite state program evaluations as directed in guidance, reportedly due to a lack of resources.  GAO recommends  evaluating and revising as needed UIC program guidance on effective oversight to identify essential activities for effectively overseeing state and EPA-managed programs.
  • EPA has not approved and incorporated all state program requirements and changes into the federal regulations through a rulemaking so may not be able to enforce all state program requirements.  GAO  recommends conducting the necessary rulemakings and considering alternative processes for incorporating future changes more efficiently without a rulemaking.
  • Class II data collected by EPA are currently not sufficiently complete or comparable for reporting at a national level.  GAO recommends various measures for supporting nationwide reporting goals until the national UIC database is complete, including improving the quality of incoming data and the usability of existing data.

The GAO will provide updated information when it confirms what actions EPA has taken in response to GAO’s recommendations.


CA Drought/New Water Supply Reports

Grayson_Lynn_COLORBy: E. Lynn Grayson

 

The Association of California Water Agencies (ACWA) recently issued a new report titled "2014 Drought: Impacts and Strategies for Resilience" for building a statewide water management system more resilient to drought. At the same time, the Natural Resources Defense Council and the Pacific Institute released a new report titled "The Untapped Potential of California's Water Supply" highlighting possible water conservation through modern irrigation technologies and practices. These reports provide differing recommendations on how best to respond to the state's drought conditions.

Governor Jerry Brown declared a statewide drought emergency on January 17, 2014 and directed state officials to take all necessary actions to prepare for drought conditions. The governor called on Californians to reduce water use by 20% and followed his drought declaration with a more detailed executive order on April 25, 2014.

ACWA's Drought Action Group recommended the following:

  1. State and federal agencies should facilitate construction of shovel-ready water infrastructure projects by providing funding and technical assistance as soon as possible.
  2. The SWRCB should identify ways to reduce impediments and provide funding and technical assistance for projects that create new surface and groundwater storage and improve conveyance around the state to help address the state's groundwater challenges.
  3. State and federal agencies should continue to move toward using real-time data for operational decisions to allow for greater flexibility and efficiency in getting water to the state's economy.
  4. The state should work with stakeholders and explore opportunities to further streamline transfers including additional collaboration with the federal government and a careful review of the recent report from the Streamline Our Agency Regulations (SOAR) Water Transfers Action Team.
  5. The state should facilitate and/or expedite regulations or permitting processes that encourage innovative technologies including water recycling and desalination.
  6. The state should work with local agencies to review opportunities for more closely coordinating planning documents in drought conditions.
  7. The state and federal government should provide funding and technical support in partnership with local agencies to develop long-term water infrastructure projects that will help ensure reliable water supplies for both the economy and the environment.
  8. The state and federal government should disburse funding approved through state drought emergency legislation passed earlier this year and other federal programs so projects can move forward and assist impacted communities.
  9. The state should acknowledge that local water systems are best equipped to determine which water conservation programs are most effective for their customers.
  10. The state should review its overall 2014 drought response and look for opportunities to improve coordination in future dry conditions or other extreme weather events.

NRDC's report recommended more focus on the following initiatives to better manage use and reuse water supplies:

  1. Improving Agricultural Water-Use Efficiency
  2. Improving Urban Water-Use Efficiency
  3. Greater Water Reuse
  4. Expanding Stormwater Capture and Use
  5. Combined Water Supply and Demand Reductions

The National Weather Service data confirm that nearly the entire state is in severe drought and over two-thirds in extreme drought. ACWA's report shows significant impacts from drought conditions not only to agriculture but also wildlife protection, commercial sector and trade and ecosystems.

These reports agree that current drought conditions have exposed key vulnerabilities in the state's water management system that must be addressed as soon as possible to avoid even more dire challenges in the future. These reports add to the growing volume of data about next best steps to address water scarcity concerns. According to the NRDC, the challenge is not a lack of knowledge or vision about what to do but rather the urgent need for more effective implementation of strategies already known to work.

California's drought conditions and the State's response to growing water scarcity is a real time reminder of water-related challenges faced now and to be confronted in the future throughout the United States, based upon climate change predictions and population growth expectations.

ACWA's report is available at http://www.acwa.com/spotlight/acwa-drought-action-group-report.

NRDC/Pacific Institute's report is available at http://www.nrdc.org/water/ca-water-supply-solutions.asp.


U.S. EPA 2013 TRI Preliminary Dataset Now Available

B Essig_Genevieve_COLORy: Genevieve Essig

 

EPA has released the 2013 Toxic Release Inventory (TRI) preliminary dataset, which contains toxic chemical release and pollution prevention data reported by facilities for the 2013 calendar year.  The currently available dataset includes reporting forms processed as of July 9, 2014 (the annual reporting deadline is July 1); EPA plans to update the dataset throughout the summer and release the complete dataset in October.  The TRI National Analysis Report, which is developed on an annual basis to provide the public information on “how toxic chemicals were managed, where toxic chemicals were released, and how [that year’s] TRI data compare to data from previous years,” will be issued in January 2015 based on this data.  2013 was the first year that facilities were required to submit their TRI reporting forms electronically using the TRI-MEweb reporting application.

The dataset is accessible through EPA’s Envirofacts system, which includes search functions that allow a user to utilize the data in a number of ways.  It is also available through downloadable TRI data files.  EPA suggests that one may use the preliminary dataset to conduct such tasks as the following:

  • Determine if a particular facility has reported to TRI.
  • Determine what chemicals a particular facility is using and releasing into the environment, or otherwise managing as waste.
  • Find out if a particular facility initiated any pollution prevention activities in the most recent calendar year.
  • Begin conducting research into toxic chemical releases across the United States or in a specific geographical area.

Various other online TRI tools will be updated beginning in September.  


Great Lakes Restoration Grants Available

Grayson_Lynn_COLORBy: E. Lynn Grayson

 

EPA recently issued a Request for Applications soliciting proposals from states, municipalities, tribes, universities and nonprofit organizations for Great Lakes Restoration Initiative grants to fund new projects to restore and protect the Great Lakes. Up to $27.5 million will be available during the current funding cycle. Grants will be awarded on a competitive basis for projects in the Great Lakes basin. Applications are due August 25, 2014. 

"This round of Great Lakes Restoration Initiative funding will be used for projects that control invasive species, prevent the discharge of nutrients and sediment, and improve water quality in the Great Lakes," said EPA Great Lakes National Program Manager Susan Hedman. "The work funded by these grants will help to restore and protect waters that are essential to the health and jobs of millions of Americans."   

A webinar explaining the grant application process will be held at 10:00 a.m. Central time on Tuesday, July 29. The Request for Applications and information about applying for Great Lakes Restoration Initiative grants is available at http://www.epa.gov/greatlakes/fund/2014rfa02/.   

For more information about the Great Lakes Restoration Initiative visit www.glri.us.


Appellate Court Rejects Challenge To NPL Listing

Siros_Steven_COLORBy: Steven M. Siros

 

A recent decision from the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to U.S. EPA's decision to list a site on the National Priorities List ("NPL"), finding that although the petitioner had standing to challenge the NPL listing, it impermissibly sought to rely on information that was not contained in the administrative record and failed to demonstrate that U.S. EPA's decision to list the site was arbitrary and capricious. In CTS Corp. v. EPA, the petitioner, CTS Corporation, challenged U.S. EPA's decision to list a former manufacturing facility on the NPL. The site in question (which was the subject of an recent Supreme Court decision finding that CERCLA's Section 9658 did not preempt a state statute of repose (see CTS Corp. v. Waldburger)) was added to the NPL at least in part on the basis of groundwater contamination that had allegedly migrated from the site into an adjacent residential neighborhood. U.S. EPA conceded that but for the residential groundwater contamination, the site's Hazard Ranking System score would not have exceeded the 28.5 threshold required to list a site on the NPL. 

As part of its challenge to U.S. EPA's listing decision, CTS argued that U.S. EPA had failed to adequately investigate possible alternative sources of the residential groundwater contamination. The court rejected that argument, noting that the handful of challenges that CTS did timely raise concerning alternative sources amounted to "little more than methodological nit-picking". The court was more critical, however, of CTS's effort to present new evidence in the form of an expert report that purported to critique a prior U.S. EPA isotope analysis of the groundwater samples that were taken from the residential wells. The court rejected what the court characterized as CTS's attempt to "bypass the administrative record" noting that it was "black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision".  The court therefore denied CTS' petition challenge to the NPL listing.


Jenner & Block Leads ABA Teleconference on Environmental Cases in the Supreme Court

Bandza_Alexander_COLORBy: Alexander J. Bandza

 

On Thursday, July 17, 2014, from 12:00 p.m. - 1:30 p.m. (Eastern Standard Time), the Constitutional Law Committee of the ABA's Section of Environment, Energy, and Resources (SEER), will present a teleconference on "Supreme Court Year in Review:  The Environmental Cases."  Alexander Bandza, an associate in Jenner & Block's Environmental and Workplace Health & Safety Law practice group, will moderate the teleconference, which will feature private sector and academic representatives discussing the following four environmental cases in the 2013-2014 U.S. Supreme Court term:

  • CTS Corp. v. Waldburger, covered by Prof. Alfred Light, St. Thomas University School of Law;
  • EPA v. EME Homer City Generation, covered by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center;
  • Marvin M. Brandt Revocable Trust v. US, covered by Prof. Danaya Wright, Clarence J. TeSelle Endowed Professor, University of Florida, Levin College of Law; and
  • Utility Air Regulatory Group v. EPA, covered by Shannon Broome, Partner, Katten Muchin Rosenman LLP.

Advance registration is required. Register now by completing this RSVP. Please register no later than Wednesday, July 16. Phone lines are limited, so register early.

Please send questions in advance to abandza@jenner.com. Materials are available online here.


Illinois Appellate Court Rules That Workers’ Compensation Exclusivity Not A Bar To Subsequent Personal Injury Claim

Siros_Steven_COLORBy: Steven M. Siros

 

In a case of first impression, an Illinois Appellate Court recently allowed a plaintiff to pursue asbestos personal injury claims against his employer, finding that the plaintiff was not limited to seeking redress under Illinois' workers' compensation laws. In the matter of Folta v. Ferro Engineering, the plaintiff was allegedly exposed to asbestos while employed at a plant owned by defendant between 1966 and 1970. Forty-one years later, plaintiff was diagnosed with mesothelioma. By this time, plaintiff's workers' compensation claim was time-barred by the 25-year statute of repose for asbestos-related injuries under Illinois' Workers' Compensation Act and the three-year statute of repose for asbestos-related diseases under Illinois' Workers' Occupational Diseases Act. The trial court granted the employer's motion to dismiss, finding that plaintiff's claims were in fact time-barred.

On appeal, plaintiff argued that because his injuries were not otherwise compensable under the Workers' Compensation Act and/or Workers' Occupational Diseases Act, the exlusivity provisions of those statutes should not operate as a bar to his personal injury claims.  The appellate court agreed, finding that since plaintiff was unable to recover under Illinois' regulatory scheme, there was no risk of double recovery and/or excessive litigation. The appellate court therefore reversed the trial court's dismissal of plaintiff's claim and remanded the case back to the trial court.

Interestingly, what appears to be missing from the appellate court's analysis is any discussion concerning the rationale behind Illinois workers' compensation regulatory scheme (to provide employers with some degree of certainty with respect to the nature and extent of an employee's compensation in exchange for the employee being assured of compensation while avoiding the cost, delay and uncertainty of litigation).  Additionally, the court's decision would seem to implicitly incorporate a discovery rule into Illinois' statute of repose.


New SEC Climate Disclosure Search Tool

Grayson_Lynn_COLORBy: E. Lynn Grayson

 

Ceres and CookESG Research have launched a new search tool allowing easier access to companies' climate change-related disclosures to the U.S. Securities Exchange Commission (SEC). The SEC Climate Disclosure Search allows searching by year, company, ticker, industry group or stock index as well as environmental themes such as energy/fuel efficiency, climate and fossil fuel extraction and greenhouse gas emissions.

The SEC Climate Disclosure Search examines 10-Ks of companies that have been constituents of the Russell 3000 Index at any time from 2009 forward.  New filings are added weekly. According to Ceres,  the SEC Climate Disclosure Search helps researchers understand how companies are tackling potential material risks they may face from climate change. 

Ceres believes that sustainability disclosure in SEC filings has become an increasingly important source of information for investors and stakeholders. If management believes the firm faces material climate-related risks, SEC rules may require disclosure of those issues. In addition, the 2010 SEC interpretive guidance on climate change disclosure advises companies on what risks may be material and how to report them.

In the explanation accompanying the search tool, Ceres concludes that investors increasingly recognize that climate change threatens to change the competitive landscape across whole industries and markets, and they require improved corporate reporting to understand these issues. Narrative disclosure can include decision-useful information and reflect a company's current response to climate risk and preparedness for likely future risks. Also, other important sustainability issues closely linked to climate change, such as water availability and quality, are becoming increasingly important to investors.

The tool is available at http://www.ceres.org/resources/tools/sec-climate-disclosure/sec-climate-disclosure.