Last week, President Trump repealed the stream protection rule designed to halt water pollution caused by mountain top removal mining. Using the Congressional Review Act authority, he stopped implementation of a rule that would have restricted the placement of mining waste in streams and drinking water sources, as well as the amount of waste generated overall by mining operations.
Arguably, a law exists that prohibits mining-related discharges to waterways. The 1977 Surface Mining Control and Reclamation Act says that mining companies should not cause "material damage to the environment to the extent that it is technologically and economically feasible." The new stream protection rule was needed since many believed the Act’s existing language was vague and did not provide sufficient protections. Moreover, critics charged that the agency responsible for enforcing this law, the Office of Surface Mining Reclamation and Enforcement (OSMRE), had not clarified the scope and interpretation of the law since publishing the “stream buffer zone rule” in 1983.
The repeal means that the OSMRE will return to reliance upon the 1983 version of the stream protection rule which prevents mining activities within 100’ of a stream. Environmental groups and others claim that the existing rule is not protective of streams from mining-related discharges.
What is particularly notable about President Trump’s repeal of this rule is the fact it is only the third time that the Congressional Review Act (CRA) has been used to claw back a former president’s regulation. The CRA basically says the House and Senate can kill any recently finalized regulation with simple majority votes in both chambers, so long as the president agrees. What is interpreted to mean recently finalized can be challenging , but Congress can basically vote to overturn any Obama-era regulation that was finished on or about June 2016. It appears that this timing impacts at least 50 new regulations.
Friday afternoon, Scott Pruitt was confirmed by the Senate to serve as the Administrator of the U.S. Environmental Protection Agency. 52 Senators voted for Mr. Pruitt’s confirmation, while 46 Senators voted against him. The vote was largely along party lines, with Democratic Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia voting for Pruitt and Republican Susan Collins of Maine voting against him.
As we previously reported here, Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. As Oklahoma Attorney General, Mr. Pruitt has sued EPA numerous times to challenge EPA regulations, including current litigation over the Obama Administration’s Clean Power Plan. Oklahoma is part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit.
Last Friday, White House Chief of Staff Reince Priebus issued a memorandum directing all agencies, including EPA, to freeze new or pending regulations. The freeze effects regulations at a variety of stages of finality. Under the Administration’s direction, the following actions are being taken by EPA and other agencies:
- Regulations that have been finalized but not yet been sent for publication in the Federal Register will not be sent until reviewed by someone selected by the President.
- Regulations that have been sent to the Federal Register but not published will be withdrawn.
- Regulations that have been published in the Federal Register but have not reached their effective date will be delayed for at least 60 days for review (until March 21, 2017).
Following through on this direction, EPA released a notice that will be published in the Federal Register on January 26, 2017, delaying implementation of all published rules that have yet to take effect until at least March 21, 2017. The delayed rules include EPA’s Risk Management Program (RMP) facility safety rule, the 2017 Renewable Fuel Standard (RFS) targets, and the addition of vapor intrusion to Superfund NPL site scoring.
By E. Lynn Grayson:
The Department of Homeland Security (DHS) continues to implement recent changes to the Chemical Facility Anti-Terrorism Standards (CFATS) program. DHS updated its data platform and portal that will require regulated facilities to resubmit the Top-Screen information that originally was submitted in the 2008 time frame.
The DHS last year issued notice in the Federal Register (81 FR 47001, July 20, 2016) announcing revisions to its CFATS program, effective October 1, 2016. The main objective of the notice was to advise that the DHS was transitioning to revised versions of the applications for the Chemical Security Assessment Tool (CSAT), the CSAT Security Vulnerability Assessment (SVA) and the CSAT Site Security Plan (SSP). DHS implemented a three-step process to transition to these new versions: 1) temporarily suspended, effective July 20, 2106, the requirement for CFATS chemical facilities of interest to submit a Top-Screen and SVA; 2) replaced the current applications with CSAT 2.0 beginning in September 2016; and 3) reinstated the Top-Screen and SVA submission requirements effective October 1, 2016.
At this time, regulated facilities do not need to take any action unless notified by DHS. DHS began sending out notices to individual facilities every two weeks once the roll-out started in October 2016. Each batch of notifications will include sites from all risk-based tiers and also will include sites that have previously tiered out or are otherwise exempt from CFATS.
Other key highlights and insights include:
- While there is no requirement to do so, regulated facilities may choose to proactively resubmit a Top-Screen utilizing the new CFATS CSAT. Once notified, facilities will have 60 days to submit this updated and/or new Top-Screen.
- No changes have been made to the Appendix A identifying the chemicals of interest (COI) and the associated screening threshold quantity (STQ).
- CSAT 2.0 makes some changes in terms of how and when information is reported. For example, information previously collected through the SVA now may be collected through the Top-Screen. Other information collected in the past in the SVA now will be collected in the SSP.
- The new online SSP will come partially pre-populated from the new Top-Screen and the new SVA submissions as well as information from previous submissions.
In general, CFATS requires chemical facilities report COIs at or above the STQ through submission of a Top-Screen to DHS. Thereafter, DHS decides whether to impose security requirements upon the facility at issue. CFATS requirements apply to facility owners and operators that possess, consume, sell or create various chemicals that could be useful to conducting a terrorist event. There are over 300 COIs including commonly used chemicals such as ammonia, propane, hydrogen peroxide, flammables, bromine, aluminum, nitric oxide and vinyl chloride. Original compliance deadlines for submission of Top-Screen information was in 2008 time frame.
Facilities that previously submitted a Top-Screen survey, even those previously determined to be exempt from the CFATS requirements, will be required to resubmit the Top-Screen information using the new data CSAT 2.0 platform and portal. DHS will notify each facility about these new requirements and facilities will have 60 days to submit the new Top-Screen information. Facilities are welcome to be proactive and submit an updated Top-Screen prior to any DHS notification.
For further insight into these new requirements, please see the Federal Register notice at https://www.federalregister.gov/documents/2016/07/20/2016-16776/chemical-facility-anti-terrorism-standards or visit the CFATS program website at https://www.dhs.gov/chemical-facility-anti-terrorism-standards .
On Friday, January 13, 2017, notwithstanding its previous promises to take full responsibility for the Gold King Mine environmental spill, U.S. EPA, with guidance from the United States Department of Justice, concluded that it was not legally liable to pay compensation for administrative claims for the Gold King Mine disaster under the Federal Tort Claims Act. According to U.S. EPA, the Federal Tort Claims Act does not authorize damages for discretionary acts by federal agencies (i.e., actions which require the exercise of judgment on the part of the agency). Because U.S. EPA was conducting a site investigation of the gold mine pursuant to CERCLA, the agency’s actions are considered a discretionary function under the law (at least according to U.S. EPA).
Not surprisingly, this action by U.S. EPA was blasted by New Mexico lawmakers and the Navajo nation with lawmakers vowing to continue to press for legislation that would hold U.S. EPA fully accountable for the spill. Moreover, U.S. EPA’s conclusion that it has no responsibility for administrative claims is likely to be challenged as aggrieved parties have six months from the date of denial to challenge U.S. EPA’s decision.
Please click here to see U.S. EPA’s public statement concerning its liability conclusion with respect to the Gold King Mine spill.
EPA Proposes Notice of Intent to Proceed with Rulemaking for CERCLA Financial Responsibility Requirements for the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries
Yesterday, on January 11, 2017, the EPA issued a notice of intent to proceed with rulemaking regarding whether and to what extent financial responsibility requirements under CERCLA section 108(b) should apply to the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries.
The rulemaking will have an interesting path forward in light of its history and the upcoming administration change. On January 6, 2010, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that identified additional classes of facilities within three industry sectors that could warrant developing financial responsibility requirements under CERCLA section 108(b): (1) the Chemical Manufacturing industry (NAICS 325); (2) the Petroleum and Coal Products Manufacturing industry (NAICS 324); and (3) the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211). In August 2014, environmental groups filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, for a writ of mandamus requiring issuance of CERCLA section 108(b) financial responsibility rules for the three additional industries identified by EPA in the ANPRM. EPA and the petitioners submitted and the court approved an Order on Consent, which included a schedule for further administrative proceedings under CERCLA section 108(b). Critically, in granting the motion to enter the Order, the D.C. Circuit recognized that “the content of [the rulemaking required under the Order] is not in any way dictated by the [Order].” Therefore, the upcoming administration may be bound to entertain the process of rulemaking, it appears free to disregard producing any rule as a result of this process.
In a move that should not come as a great surprise, on December 7, 2016, U.S. EPA published a final rule which added a "subsurface intrusion” or “SsI" component to CERCLA’s Hazard Ranking System (HRS). More specifically, SsI can include either groundwater or vapor intrusion although vapor intrusion is the much more common exposure pathway. The new rule, which can be found here, will become effective within 30 days of publication in the federal register. According to U.S. EPA Waste Chief Mathy Stanislaus, the new rule expands the types of sites that be assessed by U.S. EPA to now include sites that solely have SsI issues, as well as sites that have SsI issues that are coincident with a groundwater or soil contamination problem.
The final rule is substantially similar to the draft rule but does have minor adjustments that were made in response to comments which U.S. EPA contends will better “help refine the mechanics of assigning an HRS site score.” Importantly, the new rule doesn’t change the existing HRS cutoff score of 28.5 for a site to qualify for listing on the NPL, nor does the new rule apply to sites that are already on or proposed to be listed on the NPL.
Industry groups and the Department of Defense had objected to the draft rule, and it is unclear whether the new rule will be retained or modified under the incoming Trump administration. We will continue to track this and other rulemaking efforts on the part of U.S. EPA as the administration continues to transition.
Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.
Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.
Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:
Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.
Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”
Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle recently launched an unprecedented effort to generate new industrial investment in Chicagoland neighborhoods. The Industrial Growth Zones program will accelerate neighborhood development in seven designated areas over the next three years by removing longstanding hurdles to development and providing a broad set of services to support property owners and industrial businesses. The purpose of the program to spur economic growth and generate real, sustainable jobs by promoting investment and industrial development in Chicago neighborhoods.
The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.
The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.
The U.S. Court of Appeals for the District of Columbia has rejected arguments by the federal government that allowing an aerospace contractor to pass through certain CERCLA remediation costs back to the government under its existing government contracts constituted an impermissible double recovery under CERCLA. Lockheed Martin Corp. v. U.S. (D.C. Cir. Aug. 19, 2016). Lockheed had incurred in excess of $287 million to remediate several contaminated sites where it had manufactured solid-propellant rockets pursuant to government contracts. Lockheed sued the government under CERCLA to recover a portion of its costs incurred to remediate these sites, alleging that the government was directly responsible under CERCLA for a portion of these costs due to the government’s acquiescence in certain of Lockheed’s disposal activities. At the same time, however, the government and Lockheed had entered into an agreement pursuant to which the government agreed that Lockheed was entitled to recover a portion of its remedial costs as indirect costs charged through its current government contracts (the “Billing Agreement”).
The district court engaged in a thorough analysis of the typical CERCLA equitable contribution factors and allocated a specific percentage of liability to Lockheed and a specific percentage of liability to the government (the percentages varied across the sites). On appeal, the government pointed to the fact that Lockheed was already recovering a significant portion of its remedial costs from the government through the Billing Agreement and argued that any further obligation on the part of the government to reimburse Lockheed for additional remedial costs was inconsistent with CERCLA’s broad equitable principles and constituted an impermissible double recovery under CERCLA Section 114.
Relying in large part on the Billing Agreement, the D.C. Circuit noted that “the government agreed to [Lockheed’s recovery of its response costs] by entering into a settlement that allowed Lockheed in its new contracts to charge the government for the company’s own CERCLA liability at the discontinued sites.” Notwithstanding that the D.C. Circuit appeared sympathetic to the government’s claim that CERCLA was not designed to provide for a government-funded cleanup program but instead intended to shift remediation costs to the polluting party, here the government voluntarily agreed to the complained of funding mechanism when it entered into the Billing Agreement. In response to the government’s argument that allowing Lockheed to continue to pass these remedial costs through the Billing Agreement constituted an impermissible “double recovery,” the D.C. Circuit noted that the district court found that crediting mechanism agreed to by the parties would preclude any perceived “double recovery” and the D.C. Circuit found no reason to disturb that finding. Interestingly, the D.C. Circuit specifically stated that nothing in the Federal Acquisition Regulations or the Defense Contract Audit Agency Manual mandated the crediting mechanism agreed to by the parties but the D.C. Circuit declined to opine on the interplay of federal contracting law and CERCLA Section 114, leaving that to be resolved at a later time.
The State Water Resources Control Board has proposed a new maximum contaminant level (MCL) for 1,2,3-trichloropropane (TCP) of five parts per trillion (ppt).TCP is a manmade chemical found at industrial and hazardous waste sites. It has been used as a cleaning and degreasing solvent and also is associated with pesticide products.
California recognizes TCP as a carcinogen, and it has been found in numerous drinking water sources in the state. In August 2009, a public health goal (PHG) for TCP was developed by the Office of Environmental Health Hazard Assessment (OEHHA) for use by the State Water Board to establish an MCL. The PHG represents the level of TCP in drinking water that OEHHA believes does not pose a significant risk to health over a lifetime of exposure (70 years). The PHG for TCP is 0.0007 µg/L, or 0.7 ppt.
A drinking water standard, or MCL, establishes a limit on the allowable concentration of a contaminant in drinking water that is provided by a public water system. The State Water Resources Control Board is proposing 5 ppt as the MCL for TCP. Formal rulemaking is expected later this year, and if approved, the MCL would become effective July 1, 2017.
EPA published a technical fact sheet about TCP in 2014. More background information and guidance on the proposed MCL action for TCP also is available from the California State Water Resources Control Board.
TCP is yet another emerging chemical that has been the subject of ongoing federal and state regulatory review and discussion for several years. It also is a chemical being analyzed and assessed at the lower threshold level of ppt versus more traditional parts per billion (ppb). As is often the case, it appears that the State of California is initiating regulatory action addressing TCP concerns, and it is likely that other states will follow.
EPA’s woes over alleged mismanagement of the Gold King Mine spill in August 2015 continue with a new lawsuit recently filed by the State of New Mexico in federal district court in Albuquerque. The lawsuit names the EPA as a defendant, along with an EPA environmental contractor and mine owners contributing to the mismanagement of reclamation waters. New Mexico contends that the Agency has not done enough to remedy the toxic release of a flood of wastewater contaminated with an estimated 880,000 pounds of heavy metals into local rivers.
New Mexico’s suit seeks a declaratory judgment that the contractor and mine owners violated the Resource Conservation and Recovery Act, as well as compensatory and punitive damages for alleged negligence and gross negligence. New Mexico also is asking for a declaratory judgment against all defendants under the Comprehensive Environmental Response, Compensation and Liability Act.
Although the suit does not specify damages, attorneys for New Mexico said communities are owed at least $7 million for emergency response costs and third-party monitoring of water quality. They said the defendants should pay another $140 million in damages for estimated economic harm. This calculation estimated the harm done to rivers that are critical for agricultural and ranching use; to the Navajo Nation, which owns a tract of land the size of a small state that was affected; and to recreation that provides a significant amount of New Mexico’s income.
The New Mexico Attorney General is requesting full and just compensation for the environmental and economic damage caused by EPA’s spill. The lawsuit alleges that the effects of EPA’s spill were far worse than reported. New Mexico Environmental Department Cabinet Secretary Ryan Flynn has stated publicly that “from the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business.”
While EPA declined to formally comment on the lawsuit, an Agency spokesperson advised that the EPA has taken responsibility for the spill and already paid the State of New Mexico $1.3 million.
The lawsuit is the first state litigation against the EPA over the spill. Other states impacted include Arizona, Colorado, Utah, and the Navajo Nation.
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.
Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:
- Reducing air pollution from the largest sources
- Cutting hazardous air pollutants*
- Ensuring energy extraction activities comply with environmental laws
- Reducing risks of accidental releases at industrial and chemical facilities*
- Keeping raw sewage and contaminated stormwater out of our nation’s waters
- Preventing animal waste from contaminating surface and groundwater
- Keeping industrial pollutants out of the nation’s waters*
*New for FY2017-2019 as of February 2016.
It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.
For more information, see EPA’s news release announcing these NEIs.
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
On Wednesday, February 10, 2015 from 1:00 p.m.-2:30 p.m. (Central), Partner Steven Siros will be presenting at a DRI webinar titled “Relying on Chemical Fingerprinting as a Line of Evidence in Allocation Proceedings”. The webinar will provide insights on the technical aspects of chemical fingerprinting for a variety of contaminants, including PCBs, dioxins, and chlorinated solvents. The webinar will also provide an overview of how courts have treated chemical fingerprinting from an expert witness standpoint as well as a case study demonstrating how this technique can be used to delineate co-mingled plumes. Michael Bock, with Ramboll Environ will also be presenting at the webinar. Here is a link to the webinar brochure.
Yesterday evening, the Department of Health and Human Services designated Dr. Nicole Lurie, an agency assistant secretary, to lead the federal government’s response to the elevated lead levels allegedly found in the drinking water being provided by the City of Flint, Michigan, to its residents. This designation came on the heels of a meeting between Flint’s mayor and Valerie Jarrett in Washington, D.C. The federal government has elected to play a significant role in addressing this crisis, with President Obama signing an emergency declaration on Saturday which provided Flint with access to up to $5 million in federal funds. The crisis began in 2014 when Flint stopped getting water from Detroit and began obtaining its drinking water from the Flint River in an effort to lower costs.
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
World leaders and delegates from over 150 nations have converged in Paris, France for the United Nations Climate Change Conference (also referred to as COP21). The conference, which is scheduled to run from November 30th through December 11th, has as its goal achieving a legally binding agreement intended to limit greenhouse gas emissions in order to ensure that global average temperatures do not increase in excess of two degrees Celsius over pre-industrial global temperatures.
Leaders of both the United States and China addressed the conference attendees. President Obama noted that recent economic growth in the United States has come despite a lack of growth in carbon emissions, proving that climate advancements need not come at the expense of the economy or individual livelihoods. Chinese President Xi Jinping struck a somewhat different tone, saying that the conference "is not a finish line, but a new starting point" and that "any agreement must take into account the differences among nations” and that “countries should be allowed to seek their own solutions, according to their national interest."
Prior to the conference, countries had voluntarily submitted climate action plans referred to as Intended Nationally Determined Contributions (“INDCs”) that are intended to form the basis for any agreement that might be reached over the next two weeks. According to the United Nations Secretary General, more than 180 countries have submitted their INDCs which covers almost 100% of global greenhouse gas emissions. However, in order to reach the above-referenced goal of less than a two degree temperature increase, the Secretary General noted that developed countries would need to be prepared to expend $100 billion dollars by 2020. What if anything the developing countries would need to contribute is much more nebulous but is a topic that is certain to be discussed at the conference.
We will continue to blog on COP21 over the next several weeks while the conference is in session.
A Jenner & Block team including Partner Gabrielle Sigel and Associate Alexander Bandza of the Firm’s Environmental and Workplace Health & Safety group, supported by Partner Jessica Ring Amunson and Associate Amir Ali of the Firm’s Washington, D.C. office, won a significant victory in federal court environmental and pipeline litigation on behalf of clients Apex Oil Co., Inc. and Petroleum Fuel & Terminal Co. (PF&T). Apex and PF&T are defendants in a cost recovery and injunction action brought against them by Chevron U.S.A. Inc. in the U.S. District Court for Maryland. Chevron’s lawsuit concerns a pipeline that PF&T purchased from Chevron in 1994. Chevron has claimed more than $30mm in damages for costs of remediating pollution allegedly caused by discharges from the pipeline over the course of approximately 20 years.
U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”
Earlier this week, the U.S. EPA released its “Internal Review of the A
ugust 5, 2015 Gold King Mine Blowout,” which provides the EPA Internal Review Team’s “one week rapid assessment” of the events and potential factors contributing to the Colorado mine adit blowout earlier this month. The Review sets out a series of conclusions and recommendations, many of which lay the foundation for absolving the U.S. EPA of any wrongdoing here while proposing extensive recommendations for the future.
On August 5, 2015, contractors working for U.S. EPA at the Gold King Mine near Durango, Colorado, triggered the release of more than 3,000,000 gallons of highly contaminated water into the Animas river. More specifically, U.S. EPA contractors were in the process of conducting an investigation of the Gold King Mine to assess on-going water releases from the mine. While excavating materials around the entrance to the mine, loose material gave way allowing water from the closed mine to spill into the nearby river. As of Sunday afternoon, the mine continued to discharge approximately 500 gallons per minute although U.S. EPA notes that the polluted water is being contained and treated in two ponds near the site.
The release has resulted in a visible plume that extends almost 80 miles down the Animas River. According to preliminary water quality tests, arsenic levels in the Animas River are more than 300 times normal levels and lead had peaked at 3,500 times normal levels. U.S. EPA is working cooperatively with Region 6 and Region 9 and the states of Colorado, New Mexico, Utah and the Southern Ute tribe to address the contamination in the Animas river. The Navajo Nation, however, has declared an emergency and shut down its drinking water systems that rely upon water from the Animus river. Navajo President Russell Begaye has already indicated that the Navajo Nation intends to sue U.S. EPA for damage to the Navajo Nation’s natural resources. In addition, Colorado Governor John Hickenlooper has declared a disaster emergency for the Animas river which makes $500,000 from Colorado's Disaster Emergency Fund eligible to be used to remediate the contamination.
It is unknown at this time what long-term impacts this release might have on the Animas river which ultimately discharges into the San Juan and Colorado rivers. U.S. EPA has acknowledged that metals are likely to settle down to the bottom of the river bed and long-term monitoring will be required.
Cross-border pipelines have been the subject of much controversy, primarily related to the highly-publicized Keystone pipeline. Despite a flurry of legislative activity earlier this year, the fate of the Keystone pipeline that would expand Canadian oil distribution to the U.S. remains uncertain.
The State Department approved the transfer of ownership of the Express Pipeline to Spectra Energy Partners. This pipeline runs from Hardisty, Alberta, Canada to Casper, Wyoming. The permit allows Spectra to connect, operate, and maintain the existing pipeline facilities at the U.S.-Canada border to transport crude oil.
The State Department also approved the transfer of ownership of a pipeline running from El Paso, Texas to the Rio Grand River on the U.S.-Mexico border to Magellan Pipeline Company. The permit allows Magellan to connect, operate, and maintain existing pipeline facilities at the U.S.-Mexico border to transport liquid petroleum products.
In addition to the Keystone pipeline controversy, cross-border pipelines in general are the subject of significant public and regulatory scrutiny. Another recent example is the Alberta Clipper pipeline from Hardisty, Alberta, Canada to Superior, Wisconsin, where the State Department was accused of accelerating pipeline approval from Enbridge Energy—facts now at issue in litigation filed by a coalition of environmental groups opposed to the pipeline.