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February 2011

2010 Warmest Year on Record Globally and for Canada, Particularly

By William Kaplowitz

On January 20, 2011, the World Meteorological Organization (WMO), an agency of the United Nations, reported that 2010 was the hottest year on record. According to the WMO, the global average temperature in 2010 was .95 degrees Fahrenheit above the 1961-1990 average. The 2010 average was slightly hotter than the two most recent records set in 1998 and 2005. The 10 warmest years on record have all occurred since 1998, noted the WMO's Secretary General. The WMO also reported that there was less arctic sea ice cover in December than ever previously observed.

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$40M Available For Great Lakes Restoration Project

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA announced on Friday, February 25th, that the Agency is requesting applications from states, municipalities, tribes and nonprofit organizations for new projects to protect and restore the Great Lakes. President Obama has proposed a total of $300 million in funding for the Great Lakes Restoration Initiative in Fiscal Year 2011, with approximately $40 million of that total allocated to EPA for distribution through this competitive grant program.

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EPA Listening Sessions Begin On Potential Addition of a Vapor Intrusion Component To The Hazard Ranking System

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling


On February 24, 2011, the EPA held the first of three scheduled listening sessions in Arlington, Virginia, to obtain public input regarding a potential addition of a vapor intrusion component to the Hazard Ranking System ("HRS"). The HRS is the principal mechanism utilized by the EPA to place sites on the CERCLA National Priorities List ("NPL"), commonly referred to as the Superfund Site List. EPA is considering adding a new screening mechanism to the HRS enabling sites with vapor intrusion contamination to be evaluated for placement on the NPL. "This potential addition would allow the HRS to directly consider the human exposure to contaminants that enter building structures through the subsurface environment." 76 Fed. Reg. 5370 (Jan. 31, 2011).

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January 2011 Lender Liability Update Now Available

Gabrielle Sigel and Phoebe Scott, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their January 2011 Update of Environmental Cost Recovery developments.  The January 2011 Lender Liability Update can be viewed by following this link:

Proposed Illinois House Bill Could Result in Significant New Penalties for Illinois Businesses

Siros_Steven_COLORBy Steven M. Siros

A proposed bill pending before the Illinois House of Representatives' Environmental and Energy Committee seeks to amend Illinois' Environmental Protection Act (the "Act") to allow municipalities to impose significant penalties against any person or organization owning or leasing property where there has been a release of a hazardous substance or any other contaminant that the municipality (or other unit of local government) finds to be injurious to public health or the safety of the community.  House Bill 1441, which was proposed by Representative Frank Mautino (D-76th Dist.), seeks to amend the Act to allow for the imposition of penalties of up to $50,000 per violation and $10,000 for each day of continuing violation where there has been a release of a hazardous substance (or other contaminant) that the municipality (or unit of local government) deems harmful to public health or safety.  The bill, as currently drafted, allows the municipality to designate, in its sole discretion, when there has been a release of a contaminant that injures the public health or safety such that the penalty provisions are triggered.

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Greenhouse Gas Emissions Decreased in 2009

Siros_Steven_COLORBy Steven M. Siros


According to a February 15, 2011 U.S. EPA draft Inventory of U.S. Greenhouse Gas Emissions and Sinks, 2009 greenhouse gas emissions in the United States dropped six percent from 2008 levels.  This reduction is significant when compared to the 2.9 percent reduction achieved between 2007 and 2008.  In 2009, the United States emitted 6,639 million tons of carbon dioxide equivalent emissions which is the lowest level of greenhouse gas emissions since 1995.  According to U.S. EPA, the decrease was primarily due to (1) a decrease in economic output resulting in a decrease in energy consumption across all sectors; and (2) a decrease in the carbon intensity of fuels used to generate electricity due to fuel switching as the price of coal increased, and the price of natural gas decreased significantly.

Although greenhouse gas emissions as a whole decreased, methane emissions increased.  U.S. EPA attributes this increase in part to the switch from coal to natural gas which resulted in lower carbon dioxide emissions but an increase in methane emissions.  There was also an observed increase in methane emissions from manure management. 

U.S. EPA will accept comments on the draft inventory for a period of 30 days.

Ninth Circuit Rules Property Owner Has Standing To Challenge Impaired-Water Listing

By William L. Kaplowitz

On February 3, 2011, the United States Court of Appeals for the Ninth Circuit ruled that an owner of timberland in the Redwood Creek watershed had constitutional standing to challenge the listing of Redwood Creek as an impaired body of water under §303(d) of the Clean Water Act, 33 U.S.C. §1313(d). Barnum Timber Co. v. EPA, No. 08-17715 (9th Cir. Feb. 3, 2011). The decision is noteworthy because designating a body of water as impaired is only a preliminary regulatory step; the listing does not on its own impose restrictions on the property.

Under the CWA, states must identify bodies of water that are impaired by thermal or effluent pollution and submit a roster to the EPA for periodic approval. After the body of water is listed, the state and EPA must develop "total maximum daily loads" of pollution (TMDL) for each body and develop a plan to bring the body of water in compliance with the TMDL. California has listed Redwood Creek as impaired since 1992, and it again included Redwood Creek when it offered its 2006 list to EPA. Barnum Timber Company challenged the 2006 listing, claiming that it reduced the value of its Redwood Creek watershed property. The district court dismissed the complaint for lack of standing on the ground that Barnum Timber hadn't identified a connection between the asserted reduction in property values and EPA's listing of Redwood Creek.

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EPA Submits Draft Hydraulic Fracturing Study

Grayson_Lynn_COLORBy E. Lynn Grayson


This week EPA submitted its draft study plan on hydraulic fracturing for review to the Agency's Science Advisory Board (SAB), a group of independent scientists. The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water and its ultimate treatment and disposal.

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Krugman Links Climate Change, Food Scarcity and Mideast Unrest


Torrence_Allison_COLORBy Allison A. Torrence



Nobel Prize-winning economist Paul Krugman recently wrote an article in the New York Times explaining his theory that climate change-caused food scarcity is triggering recent uprisings in the Middle East.  Krugman focuses his analysis on the impact that rising temperatures and severe weather have on the world’s food supply.  As has been widely reported, world food prices hit a record high in January.  This high price, Krugman opines, is due to “severe weather events [that] have disrupted agricultural production.”  Krugman analyzes the rising price of wheat as an example.  According to Krugman, wheat prices have almost doubled since the summer due to reduced production in Russia and other former Soviet countries.  According to the U.S. Department of Agriculture, the reduced wheat production in these countries has been caused largely by severe heat and droughts.   

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Congressional Republicans and Senate Democrat Introduce Bills to Prevent Regulation of Greenhouse Gas Emissions

By William Kaplowitz

On January 5, 2011, Rep. Marsha Blackburn (R-Tenn.) introduced a bill, H.R. 97, that would prevent EPA from regulating greenhouse gas (GHG) emissions under the Clean Air Act. The bill, which has 113 co-sponsors, would amend the Clean Air Act to exclude GHG emissions from the definition of "air pollutant." On January 6, 2011, Rep. Shelley Moore Capito (R-W.Va.) introduced H.R. 199, which would delay for two years EPA regulations on GHGs that are not produced by motor vehicles. Also on January 6, 2011, Rep. Ted Poe (R-TX) introduced H.R. 153, a bill that would prohibit the use of federal funds to implement or enforce a cap-and-trade program or other regulation of stationary sources of GHG emissions. All three bills have been referred to the House Energy and Commerce Committee, which is now chaired by Rep. Fred Upton (R-MI).

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Contractor Owed No Duty to Warn Public of Emissions Exceedence

Siros_Steven_COLORBy Steven M. Siros


A Pennsylvania appellate court held that an environmental contractor hired to conduct air emission monitoring owned no duty to persons residing near an industrial facility to warn of excess beryllium emissions. In Reeser v. NGK North American, Inc., the plaintiff contracted chronic beryllium disease as a result of alleged exposure to beryllium emissions from a nearby industrial facility. The facility owners had retained an engineering firm to conduct stack testing at the plant. The results of that stack testing showed exceedences of beryllium from the facility. The plaintiff sued, among others, the engineering firm, on the basis that the engineering firm had breached a alleged duty to warm the public of the health risks posed by the excess emissions. The plaintiff argued that Section 324A of the Restatement (Second) of Torts imposed such a duty to warn on the engineering firm. The court rejected that argument, noting that in order for a duty to be imposed by Section 324A of the Restatement, the engineering firm needed to have undertaken a duty to protect the community. The court noted that there was no evidence that the engineering firm had undertaken such a duty nor was there any evidence that the testing had been conducted negligently. To hold otherwise, the court noted, would inhibit owners from hiring qualified consultants to investigate environmental conditions and would have been inconsistent with the purpose behind Restatement (Second) of Torts Section 324A. It should be noted that some states do impose an independent duty on environmental contractors to report certain conditions that are identified in the course of an environmental investigation so it is prudent to evaluate whether there are any state-specific reporting obligations as part of any environmental investigation.

More Insight On EPA’s Regulation Of Hexavalent Chromium And Perchlorate

Grayson_Lynn_COLORBy E. Lynn Grayson


In testimony before the Senate Environment and Public Works Committee, EPA Administrator Lisa Jackson confirmed that EPA likely will regulate hexavalent chromium in tap water but only after completing its health assessment study of the toxic contaminant. Jackson told the committee that the regulatory process would take up to two years including the completion of the human health assessment study and the ensuing public comment period. The final study is now being peer-reviewed and should be completed later this year.

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December 2010 Update: Climate Change

By Gabrielle Sigel and William Kaplowitz

Gabrielle Sigel and William Kaplowitz, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Climate Change Update Resource Center their December 2010 Update of Climate Change Developments. 

Click here to read the December 2010 Climate Change Update.