Steven M. Siros Feed

Cities Respond to Moody’s Global Warming Rating

Siros Moodys

By Steven M. Siros

On December 4, 2017, I wrote a blog regarding Moody’s Investors Service’s threat to downgrade state and municipal credit ratings if they failed to adequately plan for and attempt to mitigate climate change risks. A day later, in conjunction with the North American Climate Summit, Chicago’s mayor and dozens of other mayors signed the “Chicago Climate Charter,” which calls on mayors to work to achieve a reduction in greenhouse gas emissions that’s equal to or more than that required by the 2015 Paris Agreement. The charter would require participating cities to track and publicly report greenhouse gas emissions and take action to plan for climate change related impacts in local infrastructure and energy planning. While these actions may not have been in direct reaction to Moody’s threat, such forward thinking may minimize the risk for participating cities in future rating downgrades relating to climate change impacts.

Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks

Siros Moodys

By Steven M. Siros

In a November 28, 2017 report, Moody’s Investors Service warned cities and states that they faced the risk of a credit rating downgrade if they were not proactive in planning to mitigate the risks of climate change. The Moody’s report listed six indicators that it used to assess the exposure and overall susceptibility of states and municipalities to the physical effects of climate change, including share of economic activity derived from coastal areas, hurricane and weather damage as a share of the economy, and the share of homes in a flood plain. Based on these indicators, Florida, Georgia, Mississippi, and Texas were the states most at risk from climate change. Although Moody’s couldn’t point to a specific state or municipality whose rating was (or might be) downgraded as a result of a failure to plan for climate change, the Moody’s report clearly sets the stage for such downgrades in the future. 

Dumpster Diving Results in $9.5M Penalty Recovery for California

Siros CA hazardous waste label

By Steven M. Siros

DirecTV recently agreed to pay $9.5 million to settle claims by the State of California that it had illegally shipped hazardous wastes such as batteries and aerosol cans to local landfills across the state. California accused DirecTV of violating California’s Hazardous Waste Control Law and Unfair Competition Law after an investigation of DirecTV dumpsters at 25 facilities throughout the state identified violations at each location. DirecTV agreed to pay $8.9 million in civil penalties, costs, and supplemental environmental projects, and another $580,000 on measures aimed at ensuring future compliance with California’s hazardous waste regulations. The company also agreed to injunctive relief prohibiting future violations.

Great Lakes Legacy Act Key to CERCLA Innovation?

 

SirosBy Steven M. Siros   EPA logo 2017

U.S. EPA’s Office of Superfund Remediation and Technology Innovation (“OSRTI”) recently indicated that it may be looking to the Great Lakes National Program Office’s (“GLNPO”) sediment cleanup program for best practices that might be applicable to Superfund cleanups. OSRTI’s evaluation of GLNPO’s sediment program is consistent with comments submitted by responsible parties and cleanup contractors that U.S. EPA should give more consideration to leveraging public and private funds in Superfund cleanups. The Great Lakes Legacy Act established the GLNPO, which has been working closely with states, local government entities and other stakeholders to address sediment issues at 31 areas of concern in the Great Lakes area. U.S. EPA’s website notes that the Great Lakes Legacy Act program has invested approximately $338 million to address these sediment impacted sites while leveraging an additional $227 million from non-federal parties. Whether this approach can achieve similar results at other Superfund sites remains to be seen, but such flexibility would appear to be consistent with Administrator Pruitt’s priority to more quickly and economically address CERCLA sites.

Jenner & Block Webinar – What’s Over the Horizon: Emerging Contaminants of Concern

JB and ExponentTorrence_jpgBy Allison A. Torrence

On Tuesday, November 14, 2017, from 12:30 - 1:30 PM CST. Jenner & Block Partner Steve Siros and Jaana Pietari, PH.D., P.E., Exponent, will present a free webinar titled “What’s Over the Horizon: Emerging Contaminants of Concern.”

Contaminants of Emerging Concern (CECs) fall into many classes, and encompass an evolving number of chemicals from industrial solvents to pharmaceuticals to endocrine disruptors. CECs may be truly “emerging” chemicals that were previously unregulated, or they may be currently regulated chemicals that have been found to be more toxic or persistent and are subject to new or proposed regulations.

In the absence of federal statutes, varying state standards and advisories create a regulatory minefield for the regulated community. Two examples of CECs receiving increased regulatory and public scrutiny are 1,4-dioxane and poly- and perfluoroalkyl substances (PFAS). Although its presence has been known for nearly a decade, 1,4-dioxane has recently become a more frequent regulatory driver in groundwater cleanups and resulted in reopening previously closed sites. PFAS, on the other hand, are only recently emerging as CECs as new information about the toxicology, health effects, persistence, and systemic presence of this large group of widely used synthetic chemicals is discovered.

The purpose of this webinar is to describe current legal, scientific, and technical issues concerning CECs with a focus on groundwater remediation.

This webinar will:

  • Examine legal issues including potential affected parties, the ability of regulators to reopen previously closed sites, and the potential liabilities that can result in the absence of clear regulatory standards.
  • Describe scientific developments regarding human health and environmental effects and advances in detection and monitoring of select CECs.
  • Discuss key technical aspects regarding challenges in treatment and source identification.
  • Provide case studies highlighting the critical legal, scientific, and technical issues in addition to recommendations on risk mitigation opportunities.

To register for the free webinar, click here.

D.C. Circuit Rejects Sierra Club Challenges to LNG Exports

Linkedin_Steven_Siros_3130By Steven M. Siros

LNGOn November 1, 2017, the United States District Court of Appeals for the D.C. Circuit rejected the Sierra Club's National Environmental Policy Act (“NEPA”) challenges to the Department of Energy’s (“DOE”) authorization of export of liquefied natural gas from three facilities in Louisiana, Maryland, and Texas. The court noted that its decision in Sierra Club v. U.S. Department of Energy (Freeport), 867 F.3d 189 (D.C. Cir. 2017) was largely determinative of the Sierra Club’s challenges to the LNG exports from these three facilities. In the Freeport decision, the court agreed that DOE had provided a reasoned explanation as to why DOE believed the indirect effects pertaining to increased gas production were not reasonably foreseeable.  The court also found that DOE did not violate NEPA when declining to make specific projections regarding the environmental impacts associated with the increased production. The Freeport court also acknowledged that DOE had adequately considered the downstream greenhouse gas emissions resulting from the indirect effects of the LNG exports.

Notwithstanding the Freeport decision, the Sierra Club continued to challenge DOE’s authorizations for LNG exports for these three facilities, arguing that DOE’s reliance on an Environmental Assessment that found no significant impact (as opposed to an Environmental Impact Statement) is contradicted by evidence in the record. The court rejected this argument, noting that an agency’s finding of no significant impact will only be reversed if the decision was arbitrary, capricious, or an abuse of discretion which the court concluded was not supported by the record evidence. The Sierra Club also argued that DOE failed to consider the distributional impacts when evaluating “public interest” under the Natural Gas Act. However, the court noted that DOE had in fact considered the distributional impacts of the LNG exports.

Following this judgment, the Sierra Club will have lost all four petitions it filed against the DOE relating to NEPA assessments for LNG exports. The Sierra Club also lost all four of its petitions challenging FERC’s approval of these LNG exports. Please click here for a copy of the court’s November 1st decision.

Jenner & Block Welcomes Sam Hirsch Back from ENRD

Linkedin_Steven_Siros_3130By Steven M. Siros

Sam Hirsch

Jenner &  Block is pleased to report that Sam Hirsch, former Acting Assistant Attorney General and Principal Deputy at the U.S. Department of Justice’s Environment and Natural Resources Division (ENRD), has returned to the Firm as a Partner in our Washington, DC office. Sam was formerly an attorney with Jenner & Block until 2009 when he moved to the U.S. Department of Justice, where he served as Deputy Associate Attorney General  before taking on his most recent role. During his time at ENRD, Sam was primarily responsible for litigation and policy work relating to the prevention and cleanup of pollution, environmental challenges to federal programs, stewardship of public lands and natural resources, property acquisition, wildlife protection, and Indian rights and claims. As Acting Assistant Attorney General and Principal Deputy, he oversaw the drafting of more than 200 briefs, including more than 40 U.S. Supreme Court cert-stage, merits, and amicus briefs, as well as more than 150 appeal-recommendation memos to the Solicitor General. These briefs and memos dealt with cases in all 13 federal circuits and covered nearly the entire range of federal environmental and natural resources statutes, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act (NEPA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund), the Oil Pollution Act, the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Marine Mammal Protection Act, and the Lacey Act.

Sam was involved in all phases of the Deepwater Horizon litigation, including helping structure the global settlement, which directed more than $8.1 billion toward restoring damaged natural resources in the Gulf of Mexico. He also drafted portions of  the criminal plea agreements that created the National Academy of Sciences' $500 million Gulf Research Program, which funds and conducts studies and projects to enhance oil-system safety, human health, and environmental resources in the Gulf of Mexico and other U.S. outer-continental-shelf regions that support oil and gas production. 

Sam may be reached at (202) 637-6335 or shirsch@jenner.com.  Welcome back Sam!  

President Trump’s U.S. EPA—Status Update on Nominations

Linkedin_Steven_Siros_3130By Steven M. Siros

EPA logo 2017Unless one has been living under a log (and even that might not be an excuse), we all know that Scott Pruitt was confirmed as U.S. EPA Administrator on February 17, 2017. However, the status of President Trump’s other U.S. EPA nominations may not be as front and center. As such, here is a quick cheat sheet for those watching at home (current as of 9/21/2017):

  • General Counsel: Matthew Leopold. Mr. Leopold was nominated as General Counsel to U.S EPA in September 2017. Mr. Leopold was an attorney with the Environment and Natural Resources Division of DOJ for approximately six years and then became general counsel for Florida Department of Protection. Upon leaving FDEP in 2015, he joined the Florida-based law firm Carlton Fields. Mr. Leopold’s nomination has been referred to the Senate Environmental and Public Works committee and his nomination (along with the nominations of Dourson, Wehrum and Ross) were to have been considered by the committee yesterday (Sept. 20th) but the hearings were cancelled when the Senate decided it had worked enough and adjourned early for the week.
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  • Enforcement and Compliance Assurance: Susan Parker Bodine. Ms. Bodine was nominated as Assistant Administrator for the Office of Enforcement and Compliance Assurance in May 2017. Since 2015, Ms. Bodine has been serving as chief counsel on the Senate Environment and Public Works Committee and previously served as the Assistant Administrator of the Office of Land and Emergency Management. Ms. Bodine’s nomination was approved by the Senate Environmental and Public Works committee on July 12th and she is awaiting full Senate confirmation. Ms. Bodine has over 29 years of environmental law experience, including having worked at two law firms and being the staff director and counsel for the House Transportation & Infrastructure Committee’s water panel.
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  • Chemical Safety and Pollution Prevention: Michael Dourson. Mr. Dourson was nominated in July 2017 to become the Assistant Administrator for the Office of  Chemical Safety and Pollution Prevention.  Mr. Dourson is a toxicologist who had formerly worked at U.S. EPA. After leaving U.S EPA in the 1990s, Mr. Dourson founded the non-profit group Toxicology Excellence for Risk Assessment which opponents have criticized for being at least partially funded by industry. Mr. Dourson is currently a professor at the University of Cincinnati. His nomination has been referred to the Senate Environmental and Public Works committee but his nomination hearing has been delayed. 
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  • Office of Water: David Ross. Mr. Ross was nominated in September 2017 to become the Assistant Administrator of the Office of Water. Mr. Ross currently serves as Wisconsin’s assistance attorney general and Director of the Environmental Protection Unit for the Wisconsin Department of Justice. Mr. Ross previously served in the Wyoming Attorney General’s Office. Mr. Ross seems generally to have bi-partisan support and his nomination has been referred to the Senate Environmental and Public Works committee but his nomination hearing has been delayed.
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  • Air and Radiation: William Wehrum. Mr. Wehrum was nominated in September 2017 to become the Assistant Administrator of the Office of Air and Radiation. Mr. Wehrum had previously served as U.S. EPA’s acting assistant administrator for the Office of Air and Radiation from 2005 to 2007. He is currently with the law firm of Hunton & Williams and has over 31 years of experience working in the environmental field. Mr. Wehrum also seems to have some limited bi-partisan support but he was also nominated for this same position by President Bush in 2005 but his nomination was pulled after Democrats accused Mr. Wehrum of working with polluters.  This same charge is currently being levied by environmental organizations.  Interestingly, Mr. Wehrum is scheduled to argue before the D.C. Circuit on September 26th in a lawsuit challenging OSHA's silica rules pertaining to the construction industry.  His nomination has been referred to the Senate Environmental and Public Works committee but his nomination hearing has been delayed.

President Trump has yet to nominate someone for the Deputy Administrator. Potential nominees that had been floated were Jeff Holmsted and Andrew Wheeler, but for now, the position is held by Mike Flynn who had previously been U.S. EPA’s Associate Deputy Administrator.

Who is in Charge of Protecting the Environment--The Role of U.S. EPA and State Environmental Agencies During a Hurricane

Linkedin_Steven_Siros_3130Torrence_jpgBy Steven M. Siros and Allison A. Torrence

weather map of hurricane approaching Florida

Following Hurricane Harvey, and with the pending landfall of Hurricane Irma, the manner and degree to which federal and state agencies coordinate environmental protection duties may seem chaotic and disorganized. However, there is a specific protocol that guides these federal agencies in taking steps to protect the environmental in anticipation of and following a hurricane.

As brief background, in 1988, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) was promulgated in an effort to establish an orderly process pursuant to which the Federal Government provides disaster and emergency assistance to State and local governments. At the request of the Governor of an affected State, the President may declare a major disaster or emergency. For example, on September 4, 2017, Florida Governor Rick Scott declared a state of emergency in anticipation of Hurricane Irma. Shortly thereafter, President Trump declared a major emergency. Upon declaration of such a major disaster or emergency, the President appoints a Federal Coordinating Officer (“FCO”), a FEMA official who is charged with coordination of Federal assistance to the affected State and local governments. 

FEMA’s primary focus is protection of human life and the majority of federal resources are obviously directed towards that goal. However, FEMA also works closely with other agencies such as U.S. EPA and state environmental agencies to implement emergency response activities focused on protecting the environment. FEMA has established numerous Emergency Support Functions (ESFs), which provide the structure for coordinating interagency support for a Federal response to declared disasters and emergencies. U.S. EPA has been designated as the ESF Coordinator for Emergency Response # 10—Oil and Hazardous Materials Response.

Here are some key environmental issues that federal and state agencies focus on during a natural disaster such as a hurricane:

Continue reading "Who is in Charge of Protecting the Environment--The Role of U.S. EPA and State Environmental Agencies During a Hurricane" »

Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer

Linkedin_Steven_Siros_3130

 

 

 By Steven M. Siros

Following the disaster that has unfolded in Texas as a result of the unprecedented flooding caused by Hurricane Harvey, affected businesses might be asking whether they might be able to avail themselves of the “Act of God” defense that is embodied in several federal environmental laws and the Texas Health and Safety Code. If ever an event qualified as an “Act of God,” many would likely agree that Hurricane Harvey falls into that category. However, if the experience of Hurricane Katrina provides any guidance, regulated entities are likely to face substantial hurdles triggering the “Act of God” defense for releases attributable to Hurricane Harvey.

Although not defined in the Texas Health and Safety Code, CERCLA defines an “Act of God” as the “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented, or avoided by the exercise of due care or foresight.” 42 U.S.C. §9601(1). The Oil Pollution Act of 1990 contains a verbatim definition of “Act of God.” 33 U.S.C. §2701(1). 

One might ask how many times the “Act of God” defense has been successfully asserted, and the answer is that there is not a single reported case where that defense has been successful.

Continue reading "Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer" »

Shell Latest Target of CWA Climate Change Citizen Suit

                              Linkedin_Steven_Siros_3130

By Steven M. Siros

 

On August 28, 2017, Shell Oil Company became the latest target of a Clean Water Act citizen suit lawsuit filed by the Conservation Law Foundation (“CLF”). Coming on the heels of the unfolding disaster in Texas caused by Hurricane Harvey,  this most recent lawsuit alleges that Shell’s stormwater pollution prevention plan for its Providence, Rhode Island Terminal is inadequate in that it fails to account for sea level rise, increased precipitation generally, and the increased frequency of storms that CLF alleges will occur due to climate change. This latest lawsuit follows a previously filed citizen suit by CLF against Exxon under both the Clean Water Act and Resource Conservation and Recovery Act relating to Exxon’s Everett Terminal located in Everett, Massachusetts. A hearing on Exxon’s pending motion to dismiss is currently set for September 12, 2017.

Events like Hurricane Harvey will provide continuing fodder for what is likely to be sharp increase in citizen suits being filed by environmental organizations seeking to advance their agendas in light of the current regulatory climate.  

 

Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline

SMS Dennis_Jeffery_COLOR

By Steven M. Siros and Jeffery S. Dennis

 

 

PipelineOn August 22, 2017, a divided D.C. Circuit panel sided with the Sierra Club and other environmental groups by concluding that the Federal Energy Regulatory Commission ("FERC") didn't adequately analyze the impacts of greenhouse gas ("GHGs") emissions that may result from a $3.5 billion natural gas pipeline to be constructed through Florida. The project in question is an approximately 500-mile long natural gas pipeline scheduled to be completed in 2021 and which is projected to carry over one billion cubic feet of natural gas per day.

Section 7 of the Natural Gas Act vests jurisdiction to approve such a pipeline with FERC. Before such a pipeline can be approved, FERC must grant the developer a certificate of public convenience and necessity (often referred to as a Section 7 certificate). Prior to issuing the Section 7 certificate for this project, FERC prepared an environmental impact statement ("EIS") as required by the National Environmental Policy Act ("NEPA"). Sierra Club and other environmental groups challenged FERC's EIS and subsequent Section 7 certificate on the grounds that it failed to adequately consider the pipeline's contribution to GHG emissions and its impact on low-income and minority communities.

Continue reading "Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline" »

D.C. Circuit Rejects U.S. EPA Efforts to Ban Hydrofluorocarbons

By Steven M. Siros Antarctic ozone map for 2017-08-06

On August 8, 2017, the United States District Court for the District of Columbia issued a decision concluding that the U.S. Environmental Protection Agency (U.S. EPA) did not have statutory authority to issue a 2015 rule that restricted the use of hydrofluorocarbons (HFCs) in a variety of products, including aerosols, motor vehicle air conditioners, commercial refrigerators and foams. 

Section 612(a) of the Clean Air Act required manufacturers to replace ozone-depleting substances (ODS) with "safe" product substitutes.  To that end, U.S. EPA was required to develop lists of "safe" and "prohibited" ODS substitutes.  Pursuant to this directive, U.S. EPA placed HFCs on the list of "safe" substitutes and manufacturers began to replace ODS with HFCs. 

However, over time, U.S. EPA began to learn that although not an ODS, HFCs were in fact greenhouse gases.  As such, in 2015, U.S. EPA promulgated a final rule that moved HFCs off of the "safe" list and onto the "prohibited" list.  See 80 Fed. Reg. 42,870 (July 20, 2015).  As part of the 2015 final rule, U.S. EPA also then prohibited the use of HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators and foams even if the manufacturers of these products had previously elected to replace the ODS in these products with the previously "safe" HFCs.  A lawsuit was subsequently filed by manufacturers of certain HFCs.    

The parties to the lawsuit both acknowledged that U.S. EPA had the ability to ban the use of ODS and that U.S. EPA could change or modify the lists of "safe" and "prohibited" ODS substitutes based on U.S. EPA’s assessment of the risks that those substances posed to human and the environment.  However, the key dispute was whether U.S. EPA had the authority under Section 612 of the Clean Air Act to prohibit manufacturers from making products that contain HFCs if those manufacturers had previously replaced an ODS with a HFC that at the time was listed as a "safe" substitute. 

The D.C. Circuit concluded that U.S.EPA did not have that authority.   The court rejected U.S. EPA’s argument that the term “replace” as used in the statute was intended to apply each time a manufacturer uses a substitute substance as opposed to when the manufacturer originally “replaced” the ODS with the HFC finding U.S. EPA's proposed interpretation to “border on the absurd.”  As such, the D.C. Circuit  vacated the 2015 rule to the extent the rule required manufacturers to replace HFCs with a substitute substance on the "safe" list. 

Another Speedbump for U.S. EPA—Status of U.S. EPA RMP Stay May be at Risk

 
 
 
 
 

Methane

Likely emboldened by the U.S. Court of Appeals decision to vacate U.S. EPA's efforts to stay certain provisions of new source performance standards ("NSPS") relating to fugitive methane emissions, on July 24, 2017, a coalition of 11 Democratic state attorney generals filed a Petition for Review in the D.C. Circuit challenging U.S. EPA's June decision to delay implementation of the Obama administration's amendments to the Clean Air Act Risk Management Program ("RMP") for 20 months. This lawsuit is in addition to a previously filed lawsuit by environmental and labor groups that also challenged U.S. EPA's stay of the RMP amendments. 

In support of their petition, the AGs contend that the requirements of Section 307(d)(7)(B) of the CAA were not met which argument proved determinative in the earlier challenge to U.S EPA's stay of the  methane NSPS.  DOJ has already sought to distinguish U.S. EPA's delay of the methane NSPS from its delay of the RMP rule by noting that U.S. EPA sought public input on its proposed 20-month delay of the RMP rule in its March 30, 2017 federal register notice.  We will continue to track both of these lawsuits as they wind the D.C. Circuit.

New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

 By Steven M. Siros   Power plant

Answering this question is likely to engender significant debate, depending on which side of the global warming conundrum one finds oneself.  However, a recent lawsuit by two California counties and one California city is likely to prompt such a debate which will play out in California state court. On July 17, 2017, Marin County, San Mateo County, and the City of Imperial Beach filed separate but similar environmental lawsuits in California state court claiming that 37 oil, gas, and coal companies caused (or will cause) billions of dollars in climate-change related damages as a result of their extraction and sale of fossil fuels in California. The multi-count complaints allege a variety of state common law claims, including public nuisance, negligent failure to warn, and trespass. The complaints contend that as result of the activities of these defendants, sea levels will rise which will cause billions of dollars in losses to each of the plaintiffs. 

These cases represent the latest in what has been to date a series of unsuccessful efforts to hold energy companies responsible for future speculative damages associated with alleged future environmental impacts associated with climate change. These cases will likely be subject to early dispositive motions seeking to have these cases thrown out of court at an early stage. We will continue to follow these cases and provide additional updates. 

U.S. EPA’s Stay of Methane Rule May Have Hit a “Speed Bump”

By Steven M. Siros   Methane

On July 3, 2017, the U.S. Court of Appeals for the District of Columbia issued an opinion which vacated U.S. EPA’s stay of certain provisions of new source performance standards (“NSPS”) relating to fugitive emissions of methane and other pollutants by the oil and natural gas industries.  After U.S. EPA originally published these NSPS rules in 2016, several industry groups sought reconsideration of these rules pursuant to Section 307(d)(7)(B) of the Clean Air Act (“CAA”). On April 18, 2017, U.S. EPA Administrator Scott Pruitt found that the petitions raised at least one objection to the rule that warranted reconsideration and on June 5, 2017, just two days prior to the deadline requiring regulated entities to conduct initial methane monitoring in order to identify potential equipment leaks, U.S. EPA agreed to stay the rule for 90 days while the rule was being reconsidered.   Then, on June 16, 2017, U.S. EPA published a notice of proposed rulemaking seeking to extend the stay for an additional two years. Several environmental groups filed an emergency motion challenging U.S. EPA’s decision to stay the rules for 90 days.   

In a split decision, the D.C. Circuit agreed that a stay pursuant to Section 307(d)(7)(B) of the CAA was only allowed if the following specific requirements of the rule are met: (1) it was impracticable to raise the objections now being raised during the notice and comment period and (2) the objection is of central relevance to the outcome of the rule. The Court found that both requirements were not met, noting that the “administrative record thus makes clear that the industry groups had ample opportunity to comment on all four issues for which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule.” The Court also addressed industries’ argument that U.S. EPA’s decision to reconsider the rule was not a final agency action. The Court agreed, over Judge Brown’s dissent, that although U.S. EPA’s decision to reconsider the rule was not a final agency action, U.S. EPA’s decision to stay the rule was tantamount to amending or revoking the rule and was in fact reviewable. It is important to note that notwithstanding the Court’s decision that U.S. EPA improperly stayed the NSPS rules pursuant to Section 307(d)(B)(7) of the CAA, the Court specifically stated that “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule and to proceed with its June 16 [notice of proposed rulemaking]," which seeks to stay the effective date of the NSPS for two years. 

This decision may provide some insight as to how the Court intends to deal with a separate pending lawsuit filed by environmental groups which seeks to challenge U.S. EPA’s decision to stay revisions to the CAA’s risk management program; U.S. EPA relied on Section 307(B)(7) to justify its decision to stay those rules as well. 

Exelon and Jenner & Block Beach Cleanup Day!

Grayson

 

By E. Lynn Grayson 

Exelon and Jenner & Block partnered today with the Alliance for the Great Lakes to cleanup 12th Street Beach, near the Adler Planetarium. Team members worked together to police the beach front picking up and disposing of waste and other discarded materials. The litter was identified, logged, recorded and weighed to aid in understanding the short term and long term impacts we are having on the Great Lakes and the many ecosystems that rely upon them.

The Alliance for the Great Lakes Adopt-a-Beach program promotes working together to protect the Great Lakes through beach cleanups and other community projects. For more than 25 years the Adopt-a-Beach program has worked to keep Great Lakes shorelines healthy, safe, and beautiful. The program is largest of its kind in the region. Adopt-a-Beach touches all five Great Lakes with volunteers from all eight Great Lakes states.

Thanks to our friends at Exelon for including us in this special environmental outreach!

Exelon and Jenner & Block
Exelon and Jenner & Block
Jenner & Block EHS Team
Jenner & Block EHS Team

 

News of OECA’s Demise May be Greatly Overstated

Bodine
Susan Bodine

By Steven M. Siros

President Trump announced his intent to nominate former U.S. EPA waste chief Susan Bodine to head up the Office of Enforcement and Compliance Assurance (“OECA”).  Since 2015, Bodine has served as chief counsel on the Senate Environment and Public Works Committee and formerly served as the assistant administrator of the Office of Solid Waste and Emergency Management (now known as Office of Land and Emergency Management).  This nomination may put to bed rumors that had been swirling that the Administration was looking to eliminate OECA and represents the first nomination by the new Administration for an open U.S. EPA position since the nomination of Scott Pruitt as U.S. EPA Administrator.        

Bodine’s prior experience may be useful in helping to advance several of Administrator’s Pruitt’s priorities, including speeding up Superfund cleanups and returning some enforcement roles back to U.S. EPA program offices.  The challenge, of course, will be accomplishing these goals in light of the anticipated significant budget cuts within U.S.  EPA.  Sen. John Barrasso (R-WY), the environmental committee chairman, promised a prompt hearing on Bodine’s nomination.    


Earth Day 2017: Environmental and Climate Literacy

By Steven M. Siros

Earth day 2017As has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day.  This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy".  This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.  

The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement.  Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.  

In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting.  The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here).  Happy Earth Day 2017.   

 

Allison Torrence to Moderate CBA Seminar on Local, State and Federal Environmental Law

 By Steven M. Siros CBA

On Wednesday, March 22, 2017, from 3-5:30 p.m., Jenner & Block partner Allison A. Torrence will moderate a seminar presented by the Chicago Bar Association (CBA) Environmental Law Committee, addressing the current landscape of local, state and federal environmental law. Ms. Torrence is the current chair of the CBA Environmental Law Committee. Details about the seminar, and a link to register, are below.

Navigating the Current Landscape of Local, State and Federal Environmental Law

Date:                     March 22, 2017
Time:                     3:00-5:30 p.m.
Location:              The Chicago Bar Association, 321 S. Plymouth Ct., Chicago, IL

2.5 IL MCLE Credit


Description:

Local, state and federal governments all have an important role to play in enacting and enforcing environmental laws. While governments may have differing and changing priorities, environmental regulation and enforcement remain important components of all levels of government. This program will educate participants on some key issues facing business, citizens and communities under local, state and federal environmental law.


Topics and speakers:

HOT TOPICS AND CURRENT ISSUES IN ENVIRONMENTAL LAW FROM THE LOCAL GOVERNMENT PERSPECTIVE
Mort Ames, City of Chicago Department of Law

CURRENT STATE OF ILLINOIS STATE ENVIRONMENTAL LAW
James Morgan, Division of Legal Counsel, Air Enforcement Illinois

EPA THE NUTS AND BOLTS OF U.S. EPA ENFORCEMENT: A VIEW FROM REGION 5
Leverett Nelson, Regional Counsel, U.S. Environmental Protection Agency, Region 5


Moderators:

Allison A. Torrence, Jenner & Block LLP; Chair, CBA Environmental Law Committee

Kristen Laughridge Gale, Nijman Franzetti, LLP; Vice-Chair, CBA Environmental Law Committee


REGISTER HERE

Proposed Trump Budget Would Cut U.S. EPA Funding by Approximately 31%

 By Steven M. Siros

On March 15, 2017,  President Trump released his FY 2018 budget blueprint titled “America First—A Budget Blueprint to Make American Great Again.” In addition to increasing defense spending by $54 billion, the blueprint proposes a $2.7 billion budget reduction for U.S. EPA.  Highlights of U.S. EPA's proposed $5.7 billion budget include:

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OSHA Violation Doesn’t Abrogate Workers’ Compensation Immunity

 By Steven M. Siros OSHA logo

Most state workers’ compensation regulations provide an intentional tort exception for employers' workers’ compensation immunity.  A Louisiana district court recently rejected a plaintiffs’ effort to trigger this intentional tort exception to workers’ compensation immunity by citing an OSHA “willful” violation as proof that their employer consciously desired that plaintiffs’ suffer their alleged injuries. In the case at issue, plaintiffs were overcome by fumes when they were ordered to clean a tank rail car that contained hazardous chemicals. Their employer was cited for OSHA violations and several of those violations fell into the “willful” category. The court found that these allegations insufficient to meet Louisiana’s “extremely high” standard necessary to avoid the workers’ compensation bar. Hernandez v. Dedicated TCS, LLC (E.D. La. 3/3/17). 

Last year, several courts in Washington and Kentucky had similarly ruled that state workers’ compensation laws provided the exclusive remedy for employees injured in the course of their employment notwithstanding OSHA willful violations. But a U.S. District Court in Idaho recently ruled that employees could pursue tort claims after they were ordered to retrieve radioactive plates without proper protection gear in violation of applicable OSHA regulations.


Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program

Jenner Block logo

Grayson

 

By E. Lynn Grayson 

Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.

Program Details:

When: Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.

Where: Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center 

For more information about the program and to RSVP, please connect here.

New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t

 By Steven M. Siros EPA logo

In a February 11, 2017 letter to U.S. EPA, New York Governor Andrew Cuomo indicated that if U.S. EPA didn’t move promptly to establish a federal maximum contaminant level (MCL) for 1,4-dioxane, New York would be forced to set its own MCL for drinking water in the state. Governor Cuomo pointed to a perceived regulatory gap, noting that New York has expended tremendous resources to address unregulated emerging contaminants such as 1,4-dioxane, PFOA and PFOS. The Governor also noted that water systems serving fewer than 10,000 people are not required to test for unregulated contaminants such as 1,4-dioxane but that New York was moving forward with a plan to require all public water systems on Long Island to test for these unregulated contaminants regardless of size. 1,4-dioxane is alleged to have been found in 40 percent of the public water supplies in Suffolk County.

1,4-dioxane is one of several emerging contaminants that does not currently have an MCL. 1,4-dioxane is a stabilizer that is commonly associated with the chlorinated solvent trichloroethane (TCA). However, it is also commonly found in shampoos, cosmetics, and other personal care products. In the absence of federal regulation, 1,4-dioxane regulatory levels vary from state to state. For example, Michigan recently lowered its 1,4-dioxane regulatory limit from 85 parts per billion (ppb) to 7.2 ppb. Other states have lower limits still, with Massachusetts having set a regulatory limit for 1,4-dioxane of 0.3 ppb.  

This patchwork of standards illustrates the challenges that the regulated community faces in the absence of federal action to set an acceptable MCL for 1,4-dioxane and other emerging contaminants. It remains to be seen if the Trump administration will follow through with its expressed intent of relying to the states to implement and enforce environmental rules and regulations or if the administration will recognize the benefits to the regulated community of consistency, at least with respect to drinking water standards.

Allison Torrence to Speak at CBA Environmental Law Committee Meeting on 2/7/2017

 By Steven M. Siros

Jenner & Block partner Allison Torrence will be speaking at the Chicago Bar Association (CBA) Environmental Law Committee meeting on Tuesday, February 7, 2017. Allison, who is Chair of the CBA Environmental Law Committee, will be speaking about the new RCRA Hazardous Waste Generator Improvements Rule. The presentation will provide an overview of current hazardous waste generator requirements and insights into significant changes made by the new rule.

Meeting Details:

DATE: Tuesday, February 7, 2017, 12:15 p.m. to 1:30 p.m.

LOCATION: CBA Headquarters, 321 South Plymouth Court, Chicago, Illinois

TOPIC: RCRA Hazardous Waste Generator Improvements Rule

SPEAKER: Allison A. Torrence, Jenner & Block

The meeting will be webcast and Illinois MCLE credit will be provided for CBA members. For more information, please go to the CBA website.