Greenhouse Gas Feed

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

Jenner & Block Leads Presentation on Climate Change Law

Essig_Genevieve_COLORBy Genevieve J. Essig


On Friday, Gabrielle Sigel and Allison Torrence of Jenner & Block, in partnership with the Chicago Bar Association’s Environmental Law Committee, will host a luncheon entitled, “Can a Lame Duck Fly? Climate Change Law at the Sunset of the Obama Administration.”

From the presenters: “The first six years of the Obama Administration’s efforts to address climate change have resulted in regulatory changes, executive branch initiatives, judicial challenges, and Congressional obstacles.  The results of the recent 2014 mid-term elections will allow us to predict how successful the President will be in accomplishing the goals of his Climate Action Plan and his Administration’s effect on climate change law. Please join us as we discuss how the new make-up of Congress, the Administration’s proposed regulations and other executive actions, and recent federal court rulings shape the future of climate change law.”


Friday, November 14, 2014
12:00pm - 1:30pm CST
Lunch will be served at noon followed by the presentation at 12:15pm.
Jenner & Block LLP
353 N. Clark, 45th Floor
Chicago, IL
1 IL MCLE Credit

Click here to register.

Illinois Approves Fracking Rules

Essig_Genevieve_COLORBy Genevieve J. Essig


Following up on a previous post, in which we noted that, nearly a year after filing its first draft, the Illinois Department of Natural Resources (IDNR) had filed revised rules implementing the Hydraulic Fracturing Regulatory Act (225 ILCS 732) with the Illinois’ Joint Committee on Administrative Rules (JCAR), we report that JCAR has approved these proposed regulations.  In September JCAR had extended the Second Notice period for the rulemaking for an additional 45 days, but it finally approved the rules yesterday.  The final version of rules may now be filed with the Secretary of State for publication in the Illinois Register.

Lynn Grayson Comments on U.S. Climate Change Actions

Essig_Genevieve_COLORBy Genevieve J. Essig


A European Union publication Interfax recently published an article titled China and US Will Make or Break Climate Deal by Annemarie Botzki. The article discusses the stance of countries around the world on climate change and greenhouse gas (GHG) emissions and what is likely to happen at the upcoming 2015 Paris climate change talks. Jenner & Block Partner, E. Lynn Grayson, is quoted discussing the U.S. position on climate change and recent activities taken by the Obama Administration.

According to Ms. Botzki, the Conference of Parties 15 summit to be held in Paris next year may be the most important climate change negotiation ever held. It will decide how the remaining carbon space can be emitted globally while staying below a 2 C warming level will be divided among the countries of the world.

International accord on climate change is difficult particularly between developed and less developed nations. At the upcoming Paris summit, it is commonly believed that the U.S. and China will play major roles in deciding whether a binding agreement on GHG can be reached at the UN summit to follow in December.

In her comments, Lynn noted that "The U.S. position on GHG reductions and supporting an international agreement appears stronger than ever. Last month, the U.S. State Department submitted a possible global climate change agreement to the United Nations Framework Convention on Climate Change supporting a five-year time frame to make initial cuts to carbon emissions, beginning in 2020 and ending in 2025."

Another critical decision point for an international agreement is the form that binding document may take. The U.S. appears to be advocating for something other than a treaty which would require two-thirds of the U.S. Senate for ratification. Lynn was quoted as saying "given the workings of Congress these days, it is very unlikely that any treaty could be ratified. It would be virtually impossible to receive the votes needed for approval."

The article provides an overview of recent GHG actions in the EU, U.S. and China and discusses how these actions may impact climate change positions and negotiations at the Conference of Parties 15 summit.

US EPA Finalizes Hydrochlorofluorocarbon Consumption and Production Allowances for 2015 to 2019

Bandza_Alexander_COLORBy Alexander J. Bandza


On Tuesday, October 28, 2014, the US EPA published its final rule that adjusts the allowance system for the consumption and production of hydrochlorofluorocarbons (HCFCs) for years 2015 to 2019.  The rule was promulgated pursuant to the Clean Air Act, certain sections of which ensure that the United States meets its obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol).  Under the Protocol and its amendments, all developed countries are subject to caps on their consumption and production of HCFCs.  These countries must achieve a certain percentage of progress towards the total phaseout of production and consumption of HCFCs by certain dates.

Under yesterday's rule, the US EPA issued allowances for four HCFCs and implemented a  de minimis exemption for use of existing inventory of HCFC-225ca/cb and HCFC-124.  Allowances for each of the four HCFCs are as follows:

  • HCFC-22.  For consumption, the US EPA allocated about 10,000 MT in 2015 with an annual decrease of about 2,000 MT per year until its phase-out in 2020. For production, EPA allocated about 28,000 MT each year.  Under existing regulations, HCFC-22 production and consumption are zero in 2020.
  • HCFC-123.  For consumption, EPA allocated about 2,000 MT per year through 2019.  EPA also allowed for continued use of HCFC-123 in nonresidential streaming fire suppression applications.
  • HCFC-124.  For consumption and production, EPA allocated 200 MT per year through 2019.
  • HCFC-142b.  For consumption an production, EPA allocated 35 MT in 2015 with an annual decrease of 5 MT per year.  Under existing regulations, HCFC-142b allowances for production and consumption are zero in 2020.

For HCFC-225ca/cb, the US EPA allocated zero percent of the baseline for production and consumption.  However, the US EPA finalized a de minimis exemption to allow any person with HCFC-225ca/cb in inventory prior to January 1, 2015, to use that material as a solvent.  The US EPA also finalized a de minimis exemption to allow any person with HCFC-124 in inventory prior to January 1, 2015, to use that material as a sterilant for biological indicators.

The rule becomes effective on January 1, 2015.  The full rule can be found here.

DOD Report Confirms Climate Change A Threat To National Security


By E. Lynn Grayson


This week the Pentagon released Department of Defense 2014 Climate Change Adaptation Roadmap confirming that climate change poses an immediate threat to national security. The Department of Defense (DOD) views climate change as a "threat multiplier" because it has the potential to exacerbate many of today's existing challenges from infectious disease to terrorism. Rising global temperatures, changing precipitation patterns, climbing sea levels and more extreme weather events will intensify the challenges of global instability, hunger, poverty and conflict.

According to the report, the Strategic Sustainability Performance Plan articulates the DOD's sustainability vision to maintain the ability to operate into the future without decline in the mission or the supporting natural and man-made systems. DOD has established three broad adaptation goals:

1. Goal 1: Identify and assess the effects of climate change on DOD

2. Goal 2: Integrate climate change considerations across DOD and manage associated risks

3. Goal 3: Collaborate with internal and external stakeholders on climate change challenges

For DOD, these goals are supported by four lines of effort: plans and operations; training and testing; built and natural infrastructure; and, acquisition and supply chain.

What is important to note with DOD's issuance of this new report is the shifting view of climate change and how it might impact national security. Traditionally, DOD's focus was on ensuring that U.S. military installations were adapting to climate change impacts such as coastal naval bases and concerns over rising sea levels. This new report makes clear that DOD is considering climate change in a more strategic manner in terms of how such impacts may cause greater problems in regions where conflicts already exist including for example political unrest related to drought or food shortages.

Many commentators believe that the increased priority by DOD on climate change may signal the Administration's plans for more cooperation and support of international climate change negotiations on a proposed new United Nations climate change agreement to be addressed next year in Paris. Others have been critical of the Administration's interest in climate change issues when they believe there are many more important challenges that DOD should focus on like how to manage ISIS.

UN Climate Summit 2014


By E. Lynn Grayson


Secretary-General Ban Ki-moon is hosting the Climate Summit 2014 starting this week at UN headquarters in NYC. The purpose of the Summit is to engage leaders and advance climate action. The UN's ultimate objective is to rally international support for an ambitious global agreement by 2015 that limits the world to less than a 2-degree Celsius rise in global temperature. The Summit will serve as a public platform for leaders at the highest level—all UN Member States, as well as finance, business, civil society, and local leaders from public and private sectors—to catalyze ambitious action on the ground to reduce emissions, strengthen climate resilience, and mobilize political will for an ambitious global agreement.

On Sunday, climate change advocates, frustrated with international inaction on global warming, marched through the streets of Manhattan. An estimated 311,000 people marched the 2.2 mile route in NYC, making the event the largest climate-related event in history. Many other rallies around the world called on governments for change.

U.S. Secretary of State John Kerry provided opening remarks to launch a week of climate change talks in NYC yesterday, saying he's hopeful the discussions will set the tone for upcoming negotiations on an international agreement. Some 125 countries will attend the Summit, according to the Climate Group, which is organizing the event.

According to the UN and the International Energy Agency, governments must agree to emission cuts to foster development of renewable energy and low-carbon energy sources. Green energy will require investments of an estimated $1 trillion annually to limit warming to 2 degrees and minimize the climate change worst case scenarios. Clean energy investments over the past year are estimated at $254 billion.

Another critical issue to be addressed this week among public and private sector representatives is carbon pricing. The World Bank reports that about 40 countris and 20 cities have carbon pricing policies or plan to put them in place soon. On a related note, an estimated 30 companies are expected to commit to business leadership criteria on carbon pricing developed by several UN entities in cooperation with The Climate Group and the CDP.

More information about the Summit and related news can be viewed at

New Data on Open Burning of World’s Garbage

Grayson_Lynn_COLORBy E. Lynn Grayson


Unregulated trash burning around the globe is pumping far more pollution into the atmosphere than shown by official records. A new study led by the National Center for Atmospheric Research estimates that more than 40 percent of the world's garbage is burned in such fires, emitting gases and particles that can substantially affect human health and climate change.

The new study provides the first rough estimates, on a country-by-country basis, of pollutants such as particulates, carbon monoxide, and mercury that are emitted by the fires. Such pollutants have been linked to serious medical issues.

Unlike emissions from commercial incinerators, the emissions from burning trash in open fires often go unreported to environmental agencies and are left out of many national inventories of air pollution. For that reason, they are not incorporated into policy making. The new study, published in Environmental Science & Technology, was funded by the National Science Foundation, which is NCAR's sponsor. It was co-authored by scientists form the University of Montana and the U.S. Environmental Protection Agency who were also involved in measuring the composition of trash-burning emissions.

Trash burning is a global phenomenon. But it is most prevalent in developing countries where there are fewer trash disposal facilities, such as landfills and incinerators.

The amount of garbage burned in remote villages and crowded megacities is likely on the rise, as more people worldwide are consuming more goods. The trash often contains discarded plastics and electronics as well as traditional materials such as food scraps and wood.

The countries that produce the most total waste, according to the study's methods, are heavily populated countries with various levels of industrial development: China, the United States, India, Japan, Brazil, and Germany. But the study concluded that the nations with the greatest emissions from trash burning are populous developing countries: China, India, Brazil, Mexico, Pakistan, and Turkey.

The study concluded that the fires produce emissions equivalent to as much as 29 percent of officially reported human-related global emissions of small particulates (less than 2.5 microns in diameter), as well as 10 percent of mercury and 64 percent of a group of gases known as polycyclic aromatic hydrocarbons (PAHs). These pollutants have been linked to such significant health impacts as decreased lung function, neurological disorders, cancer, and heart attacks.

Trash burning in some countries accounts for particularly high quantities of certain types of pollutants. In China, for example, the emissions are equivalent to 22 percent of reported emissions of larger particles (those up to 10 microns in diameter).

The global impact on greenhouse gas emissions appears to be less, though still significant, with burning trash producing an amount of carbon dioxide equal to an estimated 5 percent of reported human-related emissions. (By comparison, the Kyoto Protocol strove for a global 5 percent cut among industrialized countries in greenhouse-gas emissions derived from fossil fuels.) In certain developing countries—such as Lesotho, Burundi, Mali, Somalia, and Sri Lanka—the trash burning produces more carbon dioxide than is tallied in official inventories. This discrepancy can be important in international negotiations over reducing greenhouse gas emissions.

The study summarized in "Global Emissions of Trace Gases, Particulate Matter and Hazardous Air Pollutants from Open Burning of Domestic Waste" is available at University Corporation for Atmospheric Research at

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

EPA Proposes Regulations To Cut Carbon Emissions From Existing Power Plants

Torrence_Allison_COLORBy: Allison A. Torrence


On June 2, 2014, U.S. EPA released proposed regulations aimed at reducing greenhouse gas emissions from existing fossil fuel-fired power plants. The proposed regulations, promulgated pursuant to Section 111(d) of the Clean Air Act, contain two main parts: (1) establishment of state-specific carbon dioxide (CO2) emission performance goals for power plants and (2) requirements for states to develop and submit a state plan for reaching the CO2 emission performance goals.

In the proposed rules, EPA sets rate-based CO2 emission performance goals (expressed in pounds of CO2 per net megawatt hour) on a state-by state basis. The state-specific CO2 emission performance goals include an interim goal, to be met by each state in 2020-2029, and a final goal, to be met by each state by 2030. The 2030 goals are designed to cut CO2 emissions from the power sector by 30 percent nationwide below 2005 levels.

States must submit to EPA a state plan designed to meet the interim and final emission performance goals set by EPA. States must submit the plans to EPA by June 30, 2016 or seek an extension until June 30, 2017. States may work together in a multi-state approach under the regulations, in which case they will have until June 20, 2018 to submit their plan to EPA. A complete state plan must include the following twelve components:

  • Identification of affected entities
  • Description of plan approach and geographic scope
  • Identification of state emission performance level
  • Demonstration that plan is projected to achieve emission performance level
  • Identification of emissions standards
  • Demonstration that each emissions standard is quantifiable, non-duplicative, permanent, verifiable, and enforceable
  • Identification of monitoring, reporting, and recordkeeping requirements
  • Description of state reporting
  • Identification of milestones
  • Identification of backstop measures
  • Certification of hearing on state plan
  • Supporting material 

The state plans must address CO2 emissions from all affected power plants, which include most steam generating units, integrated gasification combined cycle (IGCC) units, and stationary combustion turbines that commenced construction on or before January 8, 2014. EPA has previously proposed regulations, on September 20, 2013, which would limit CO2 emissions from newly-constructed power plants. The comment period on those regulations closed on January 8, 2014, and final proposed regulations from EPA are still pending.

Public comments on EPA's proposal to regulate CO2 emissions from existing power plants will be accepted by EPA for at least 120 days after publication of the proposed rules in the Federal Register. EPA will also host public hearings during the week of July 28th in Denver, Atlanta, Washington, DC, and Pittsburg. After reviewing the public comments, EPA plans to finalize the regulations by June 2015.

Click here for more information about EPA's proposed CO2 regulations.

The text of the proposed regulations is available here.