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December 2014

Another Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farms

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By E. Lynn Grayson

 

PacifiCorp Energy has agreed to pay $2.5 million to settle charges arising from bird deaths at two of its wind farms located in Wyoming. PacifiCorp pled guilty in Wyoming federal court to two misdemeanor violations of the Migratory Bird Treaty Act and was sentenced to five years' probation. The company also agreed to institute a compliance program to prevent bird deaths at the utility's four commercial wind farms in Wyoming.

According to allegations, the company failed to make all reasonable efforts to build projects in a way that would avoid risk of bird deaths by collision with turbine blades consistent with guidance finalized by the Fish & Wildlife Service in 2012. The Migratory Bird Treaty Act violations were charged following discovery of the carcasses of 38 golden eagles and 336 other protected birds at the company's Seven Mile Hill and Glenrock/Rolling Hills wind farms in Carbon and Converse counties.

This is the second prosecution of wind farm owners and operators under the Migratory Bird Treaty Act. Duke Energy was convicted last year in similar charges flowing from bird deaths at two of its wind farms also located in Wyoming. See "First Criminal Conviction Under the Migratory Bird Treaty Act for Wind Farm" blog we posted on November 26, 2013.

These are very troubling cases that pit environmentalists against clean energy advocates. While wind farm energy is highly sought after in the U.S., it is clear there is an increased scrutiny on the utilities that operate these wind projects to ensure that construction, design and operation of these wind farms are protective of birds. In many ways, this seems like an almost impossible achievement for companies.


Governor Quinn Nixes Illinois Statute of Repose for Construction Asbestos Claims

Siros_Steven_COLORBy Steven M. Siros

 

In one of his last acts on the way out of office, Governor Quinn gave what some describe as a "big Christmas gift for the plaintiffs' bar" when he signed into law a bill that exempts construction-related asbestos personal injury claims from Illinois' ten-year statute of repose. SB 2221 was targeted at plaintiffs suffering from mesothelioma, a form of lung cancer with a long latency period. The bill will go into effect on June 1, 2015.

The bill was opposed by pro-business groups which argued that the bill only further reinforced Illinois' reputation for having an abusive legal climate. According to Illinois Lawsuit Abuse Watch, Madison County, Illinois is home to a quarter of the nation's asbestos litigation and this bill will certainly enable additional asbestos litigation. On the other hand, the bill's sponsors contend that the bill levels the playing field for those suffering from mesothelioma, a disease for which the symptoms may not present themselves for more than 20 years after exposure. Please click here to see a copy of the bill that was signed into law by Governor Quinn.


New EPA Rule Regulates Coal Ash As Non-Hazardous

Grayson_Lynn_COLORBy E. Lynn Grayson

 

The U.S. Environmental Protection Agency (EPA) recently announced the first national regulations to provide for the safe disposal of coal combustion residuals (coal ash) from coal-fired power plants which will be regulated under the nonhazardous waste provisions of RCRA. In developing the new rule, the EPA evaluated more than 450,000 comments on the proposed rule, testimony form eight public hearings, and information gathered from three notices soliciting comment on new data and analyses.

According to EPA, improperly constructed or managed coal ash disposal units have resulted in the catastrophic failure of surface impoundments, damages to surface water, groundwater and the air. The first federal requirements for impoundments and landfills will address the following risks:

  • The closure of surface impoundments and landfills that fail to meet engineering and structural standards and will no longer receive coal ash;
  • Reducing the risk of catastrophic failure by requiring regular inspections of the structural safety of surface impoundments;
  • Restrictions on the location of new surface impoundments and landfills so that they cannot be built in sensitive areas such as wetlands and earthquake zones;
  • Protecting groundwater by requiring monitoring, immediate cleanup of contamination, and closure of unlined surface impoundments that are polluting groundwater;
  • Protecting communities from fugitive dust controls to reduce windblown coal ash dust; and
  • Requiring liner barriers for new units and proper closure of surface impoundments and landfills that will no longer receive CCRs.

This final rule also supports the responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled (beneficially used), rather than disposed. Beneficial use of coal ash can produce positive environmental, economic and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of coal ash disposal, and improved strength and durability of materials.

Coal ash, the second largest industrial waste stream, rose to national prominence following two high-profile spills: the December 2008 Kingston Fossil Plant spill in Tennessee and the February 2014 spill of 140,000 tons of coal ash and wastewater into North Carolina's Dan River.

Important Timeline of Coal Ash Assessment by EPA:

Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.

Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.

June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.

April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.

Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.

Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina's Dan River.

Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.

This new rule appears to be a good compromise both for industry and environmental groups. While the non-hazardous designation supports industry's position, the overall scope and regulatory focus on coal ash disposal and storage addresses concerns expressed repeatedly by citizens' groups.

Additional information about the new rule including a summary and history is available at http://www2.epa.gov/coalash/coal-ash-rule.