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.
EPA’s Safer Choice program (formerly Design for the Environment) recognizes products that meet stringent ingredient and product level criteria. Safer Choice products do not contain carcinogens or reproductive or developmental toxins. The program helps consumers and commercial buyers identify and select products with safer chemical ingredients without sacrificing quality or performance.
According to EPA, there are over 2,000 products that currently qualify for the Safer Choice label. This summer, EPA’s new Safer Choice labels began appearing on consumer products such as household soaps and cleaners. To qualify for the Safer Choice label, a product must meet stringent human and environmental health criteria.
In the first year of the Safer Choice Partner of the Year awards, the Chicago/Region V area has more winners than any other part of the country. Local award winners include: AkzoNobel/Chicago; ISSA, The Worldwide Cleaning Industry Association/Northbrook; Jelmar, LLC/Skokie; Loyola University Chicago, Institute of Environmental Sustainability/Chicago; and Stepan Company/Northfield. Nationwide, 21 entities won EPA Safer Choice Partner of the Year awards. EPA confirms there are nearly 500 formulator-manufacturer partners that make more than 2,000 products for retail and institutional customers.
More information about the Safer Choice program is available at http://www2.epa.gov/saferchoice.
Pope Francis this week is visiting Ecuador and has called for increased protection of the Amazon rain forest and in general has made environmental protection a central theme in his comments. Pope Francis noted, “The tapping of natural resources, which are so abundant in Ecuador, must not be concerned with short term benefits. As stewards of these riches which we have received, we have an obligation towards society as a whole, and towards future generations.”
Read more about Pope Francis’ visit and environmental issues in Ecuador in the New York Times article by Jim Yardley.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.
According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.
A new study released by Morgan Stanley confirms that investors appear to place a premium on sustainability yet believe that sustainable investments require some financial sacrifice. Two key findings include: 1) nearly three-quarters (72%) of those surveyed believe that companies with good environmental, social, and governance (ESG) practices can achieve higher profitability and are better long-term investments; and 2) 54% believe that sustainable investing involves a financial trade off.
The study set out to analyze potential performance and risk differences between sustainable and traditional investments. A range of studies on sustainable investment performance were reviewed along with performance data for 10,228 open-ended mutual funds and 2,874 Separately Managed Accounts (SMAs) based in the U.S. Through the review, Morgan Stanley concluded that investing in sustainability has usually met, and often exceeded, the performance of comparable traditional investments. Specific findings include:
- Sustainable equity mutual funds met or exceeded the median return of traditional equity funds for 64% of the time periods examined.
- Sustainable equity mutual funds also had equal or lower median volatility for 64% of the time periods examined.
- For the longest time period (seven years trailing, 2008-2014), sustainable equity mutual funds met or exceeded median returns for five out of six different equity classes examined (for example, large-cap growth).
- Long-term annual returns of the MSCI KLD 400 Social Index, which comprises firms scoring highly on environmental, social, and governance (ESG) criteria, exceeded the S&P 500 by 45 basis points between its inception in 1990 to the end of 2014.
The study was conducted by the Morgan Stanley Institute for Sustainable Investing. The Institute seeks to accelerate mainstream adoption of sustainable investing by developing industry-leading insights and scalable finance solutions to address global challenges.
On April 28, 2015, EPA announced the availability of a problem formulation and initial assessment document for the Work Plan Chemical 1,4-Dioxane and opened a 60-day public comment period until June 29. The notice also seeks input on EPA's Office of Pollution Prevention and Toxics' (OPPT) initial concerns about the industrial solvent 1,4-Dioxane.
Following receipt of comments on the problem formulation and initial assessment document and consideration of any additional data or information received, EPA will initiate a risk assessment which is the process to estimate the nature and probability of adverse health and environmental effects in humans and ecological receptors from chemical contaminants that may be present in the environment.