The director of the Agency for Toxic Substances and Disease Registry (ATSDR), Peter Breysse, continues to defend his agency's minimal risk levels (MRLs) for perfluorinated chemicals that were released in June 2018 as part of a draft toxicological profile. In response to questions posed at a recent Senate hearing, Breysse noted that ATSDR’s draft MRLs roughly corresponded to drinking water levels of 14 parts per trillion (ppt) for perfluorooctane sulfonate (PFOS) and 21 ppt for perfluorooctanoic acid (PFOA). Where these levels are exceeded, ATSDR has recommended that residents take steps to lower their exposures and contact state and local authorities. Breysse also recommended that residents consult with physicians and noted that ATSDR has information on its website for physicians to consult regarding exposure risks for these chemicals.
The drinking water levels referenced in the ATSDR toxicological profile (14 ppt for PFOS and 21 ppt for PFOA) correspond generally with regulatory standards implemented in several states, including New Jersey and Vermont, both of which have the lowest regulatory levels for these compounds in the United States. However, the ATSDR MRLs are much stricter than U. S. EPA’s drinking water advisory level of 70 ppt. In addition, many news outlets reported that U.S. EPA had sought to delay ATSDR’s issuance of its June 2018 toxicological profile. Perhaps coincidentally, at about the same time as ATSDR issued its draft report, U.S. EPA announced plans to begin to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS.
Although ATSDR and U.S. EPA continue to work cooperatively (at least on paper) to address PFOA and PFOS at contaminated properties throughout the United States, it remains to be seen how well these agencies will cooperate in setting an MCL for these contaminants. The agencies' "cooperative" relationship may face choppy waters, especially in light of ATSDR's continued defense of its MRLs and U.S. EPA's skeptical view regarding same.
New Jersey Federal District Court Dismisses Enviro’s Constitutional Challenges to FERC’s Approval of PennEast’s $1B Gas Pipeline, Holding that the Court Doesn’t Have Jurisdiction under the Natural Gas Act
On Monday, in N.J. Conservation Found. v. FERC (No. 17-11991), the U.S. District Court for the District of New Jersey dismissed the New Jersey Conservation Foundation’s (“NJCF”) suit against the Federal Energy Regulatory Commission (“FERC”) because the Court found that the courts of appeals, and not it, had subject matter jurisdiction under the Natural Gas Act (“NGA”). NJCF’s suit sought to declare that FERC’s practice of issuing certificates authorizing the construction of natural gas pipeline facilities violated the U.S. Constitution. While pled solely against FERC and its Commissioners, the case was predicated on FERC’s prior approval of PennEast Pipeline Company, LLC’s (“PennEast”) right to construct a $1B interstate natural gas pipeline. NJCF’s case centered on three purported Constitutional issues with FERC’s environmental analysis: (1) FERC’s approvals that delegate the power of eminent domain in the absence of adequate public use analyses violate the Takings Clause; (2) FERC’s approvals that grant eminent domain prior to receiving environmental impact findings from regulatory agencies violate the Fifth Amendment; and (3) FERC’s approvals that provide for subsequent state or federal authorizations, which then may require changes to the pipeline route or prevent construction, also violate the Takings Clause. The Court granted FERC’s motion to dismiss, holding that the Court did not have subject matter jurisdiction because the NGA vested the courts of appeals, not district courts, with exclusive jurisdiction to hear NJCF’s claims. NJCF is another voice in a growing chorus of district court and appellate cases that have rejected dissatisfied parties’ collateral attempts to re-litigate FERC’s decisions and decision-making processes, especially with regard to environmental issues, outside of FERC.
On November 5, 2018, the United States Supreme Court will hear oral arguments on a landmark case regarding the preemptive effect of the Atomic Energy Act of 1954 (the “Atomic Energy Act”) on a state’s regulation of uranium mining. The case, Virginia Uranium Inc. v. Warren, questions whether the Atomic Energy Act’s regulation of radiation safety standards extends to preempt a Virginia state law banning uranium mining within the borders of the state. The Virginia law dates back to the early 1980s, after the largest uranium deposit in the United States was discovered in Pittsylvania County, Virginia. In response to the discovery, the Virginia General Assembly asked the state’s Coal and Energy Commission to evaluate the potential safety effects of uranium mining, and enacted an indefinite ban on mining the deposit. The unharvested deposit is valued at up to $6 billion USD.
In 2007, the owners of the land, Virginia Uranium Inc., Cole Hill LLC and Bowen Minerals LLC, announced their intention to begin mining the deposit. After failing to convince the Virginia legislature to overturn its mining ban, the plaintiffs sought to challenge Virginia’s law as preempted under the Atomic Energy Act.
The Atomic Energy Act gives the federal Nuclear Regulatory Commission the sole power to regulate several steps in the production of nuclear fuel, including setting radiation safety standards for milling uranium ore and disposing of uranium waste byproducts. The Atomic Energy Act does not, however, directly regulate the mining of uranium on non-federal land.
According to the Plaintiffs/Petitioners, the Virginia ban is preempted by the Atomic Energy Act because the purpose and direct effect of Virginia’s law is to regulate radiation safety standards, which the Atomic Energy Act exclusively entrusted to the purview of the Nuclear Regulatory Commission. Predictably, the Virginia legislature has taken a much less expansive view of the law, arguing that the Atomic Energy Act only regulates uranium “after [uranium’s] removal from its place of deposit in nature.” Thus, according to the legislature, a state is free to regulate—or ban—the harvesting of uranium prior to its removal from the deposit.
The eventual resolution of the dispute will not only have a significant impact on the availability of American mined uranium, but may also potentially set the stage for the broader battle over states' rights brewing between the Trump administration and liberal states like California, which have looked to enact environmental laws in areas currently regulated by the federal government.
The Trump Administration has released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. This regulatory agenda “reports on the actions administrative agencies plan to issue in the near and long term [and] demonstrates this Administration’s ongoing commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.”
According to the Trump Administration, the regulatory agenda reflects the following broad regulatory reform priorities:
- Advancing Regulatory Reform
- Public Notice of Regulatory Development
- Consistent Practice across the Federal Government
The EPA-specific regulatory agenda lists 148 regulatory actions in either the proposed rule stage or final rule stage, and provides information about the planned regulatory actions and the timing of those actions. Notable regulatory actions under consideration by EPA include:
- Revised Definition of “Waters of the United State”
- Notice of proposed rulemaking planned for October 2019; final rule planned for September 2019
- Definition of “Waters of the United States”–Recodification of Preexisting Rule
- Final rule planned for March 2019
- Clean Water Act Section 404(c) Regulatory Revision
- Notice of proposed rulemaking planned for June 2019
- National Primary Drinking Water Regulations for Lead and Copper: Regulatory Revisions
- Notice of proposed rulemaking planned for February 2019
- National Primary Drinking Water Regulations: Regulation of Perchlorate
- Notice of proposed rulemaking planned for October 2019; final rule planned for December 2019
- Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program (a/k/a The Affordable Clean Energy (ACE) rule to replace the Clean Power Plan)
- Final rule planned for March 2019
- TSCA Chemical Data Reporting Revisions and Small Manufacturer Definition Update for Reporting and Recordkeeping Requirements Under TSCA Section 8(a)
- Notice of proposed rulemaking planned for December 2018; final rule planned for October 2019
More information, and EPA's Statement of Priorities, can be found here.
On September 13, 2018, the United States Environmental Protection Agency (“EPA”) took the final, unprecedented step of adding a contaminated site to the Superfund National Priorities List (“NPL”) based solely on the risk to human health posed by indoor air vapor intrusion at the site. The newly designated site, which consists of the former Rockwell International Wheel & Trim facility and its surrounding 76 acres (the “Site”), is located in Grenada, Mississippi. The Site has an extensive history. Beginning in 1966, the Rockwell facility operated as a wheel cover manufacturing and chrome plating plant. After chrome plating operations ceased in 2001, the facility was used for metal stamping until approximately 2007. According to EPA, the Site’s historic operations resulted in multiple releases of trichloroethene, toluene, and hexavalent chromium into the surrounding soil and adjacent wetland. However, EPA’s primary concern—and reason for listing the site—is the potential for airborne volatile organic compounds (“VOCs”) to enter the facility through cracks, joints, and other openings, resulting in contaminated indoor air. The potential for indoor air contamination appears to be of particular concern to EPA, given that nearly 400 individuals currently work within the facility.
The Site will now join a list of approximately 160 contaminated sites that have been federally designated as NPL sites. The NPL includes the nation’s most contaminated and/or dangerous hazardous waste sites. A contaminated site must be added to the NPL to become eligible for federal funding for permanent cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act. While EPA’s decision to list the Site based on risks from indoor air contamination is unprecedented, the move is not all together surprising, given EPA’s recent rulemaking actions. In May 2017, EPA passed a final rule expanding the list of factors the agency is allowed to consider when designating NPL sites to specifically include risks to human health from impacted indoor air. In the preamble to the rule, EPA noted that it needed the authority to list sites on the basis of significant risk to human health from vapor intrusion contamination.
In contrast to EPA’s position, environmental consultants operating at the Site have strongly opposed the NPL designation. Several of the firms submitted comments on the final listing, asserting that EPA’s risk evaluation failed to take into account the Sub Slab Depressurization System (“SSDS”) installed at the facility in 2017, which subsequently reduced levels of VOCs in the indoor air to safe levels. However, EPA rejected these arguments, noting that even though the SSDS may protect workers from immediate threats, “it is not intended to address possible long-term remedial goals such as addressing the sources of the contamination below the building.”
EPA’s designation of the Site should alert potentially responsible parties that vapor intrusion issues may result in an increased chance of a site becoming listed on the NPL. In addition, parties relying on engineering controls to maintain compliant indoor air vapor levels should note the potential for EPA to deem such actions insufficient as long-term site remedies.
Last week, the Santa Barbara County District Attorney and California Attorney General obtained guilty verdicts against Plains All American Pipeline, L.P. regarding the 2015 Refugio Oil Spill near Santa Barbara, CA. By way of background, on May 19, 2015, a pipeline operated by Plains to transport crude oil ruptured on shore just north of Refugio State Beach in Santa Barbara County, California, causing over 140,000 gallons of crude oil to be released from the pipeline, which spilled crude oil into the Pacific Ocean and across coastal beaches. At trial, testimony revealed that over 100,000 gallons of crude oil were never recovered.
Plains was convicted of one felony for unlawfully discharging oil into state waters and eight misdemeanors for the following: failing to timely call emergency response agencies; violating a county ordinance banning oil spills; and killing marine mammals, protected sea birds, and other sea life. Sentencing will be held on December 13, 2018.
According to a statement by California Attorney General Xavier Becerra, the verdict “should send a message: If you endanger our environment and wildlife, we will hold you accountable. At the California Department of Justice, we will continue prosecuting corporate negligence and willful ignorance to the fullest extent of the law.” (Emphasis added.)
As noted in Law360 (sub. req.), the verdict “underscore[s] the importance of pipeline companies taking their maintenance, inspection and compliance duties seriously, especially in states like California which have strict requirements and liability where knowledge or intent isn’t necessary to sustain criminal convictions.” Furthermore, the conviction specifically as to failure to notify emergency responders “underscores the importance of that duty and that companies must ensure their policies leave no room for error.” The relative rarity of criminal environmental convictions for corporations means this case is one to watch is it moves towards sentencing and/or appeals.
Beginning on June 30, 2018, EPA will launch its new Hazardous Waste Electronic Manifest (e-Manifest) System. EPA’s e-Manifest system is many years in the making and follows the 2012 Hazardous Waste Electronic Manifest Establishment Act, and two final rules issued by EPA in 2014 and 2017.
Beginning on June 30th, the following changes take effect:
- Facilities that receive hazardous waste that requires manifesting must submit manifests to EPA.
- EPA will charge receiving facilities for all paper and e-manifests (lower fees for e-manifests; higher fees for paper manifests).
- Generators, transporters and disposers of hazardous waste may transmit waste manifest data electronically through EPA’s e-Manifest system.
The new requirement for receiving facilities to submit all manifests to EPA is a big change. To assist industry in this transition, EPA recently announced that it would grant extra time for receiving facilities to submit paper manifests during the initial months after system launch.
U.S. EPA Removes Portion of Former Refinery Site from NPL: Precursor to More Expedited CERCLA Cleanups?
After almost 30 years having been listed on the NPL, U.S. EPA has removed the surface portion of the 55-acre Pacific Coast Pipeline site from that distinctive list. Since being added to the NPL in 1989, more than 42,000 cubic yards of contaminated soils have been removed from the site and a multi-layer cap has been installed. The groundwater portion of the site will still remain on the NPL in order to address benzene and protect drinking water and agricultural wells.
One goal of EPA Administrator Pruitt’s Superfund Task Force was to improve and expedite site cleanups and accelerate full and partial deletions for sites that meet all applicable requirements. “The partial de-listing of the Pacific Coast Pipeline site is an example of EPA’s commitment to accelerate the remediation of contaminated sites and transform them into productive assets for the community,” said Pruitt.
Whether this partial NPL deletion is a precursor of U.S. EPA taking a more streamlined approach to CERCLA cleanups remains to be seen, but it would appear to be a step in the right direction.
On July 25, 2017, Environmental Protection Agency (“EPA”) administrator Scott Pruitt’s “Superfund Task Force” issued a final report revealing the Task Force’s recommendations for streamlining the remediation process of over 1,300 Superfund sites currently overseen by the EPA. The Task Force’s recommendations included a strong emphasis on facilitating the redevelopment of Superfund sites by encouraging private sector investment into future use of contaminated sites. The recommendations were subsequently adopted by Mr. Pruitt, who has repeatedly affirmed that a top priority of the administration is revamping the Superfund program. In the recent months, it appears EPA and the Trump administration have taken new steps to further the objective of pushing private redevelopment for Superfund Sites.
On January 17, 2018, EPA posted a “Superfund Redevelopment Focus List” consisting of thirty-one Superfund sites that the agency believes “pose the greatest expected redevelopment and commercial potential.” EPA claims that the identified sites have significant redevelopment potential based on previous outside interest, access to transportation corridors, high land values, and other development drivers. “EPA is more than a collaborative partner to remediate the nation’s most contaminated sites, we’re also working to successfully integrate Superfund sites back into communities across the country,” said EPA Administrator Scott Pruitt. “[The] redevelopment list incorporates Superfund sites ready to become catalysts for economic growth and revitalization.”
Along the same lines, President Donald Trump’s sweeping infrastructure proposal, released February 12, 2018, proposed an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that would allow Superfund sites to access funding from the EPA’s Brownfield Program, which the administration believes could help stimulate redevelopment of the sites. The proposal further requests Congress pass an amendment to CERCLA that would allow EPA to enter into settlement agreements with potentially responsible parties to clean up and reuse Superfund sites without filing a consent decree or receiving approval from the Attorney General. The proposal claims that CERCLA’s limitations “hinder the cleanup and reuse of Superfund sites and contribute to delays in cleanups due to negotiations.”
Time will tell whether the administration’s strategy will be enough to entice new development into the Superfund sites. To follow the progress of EPA’s Superfund redevelopment efforts, visit EPA’s Superfund Redevelopment Initiative website here.
On Monday, March 5, 2018, EPA issued a report titled EPA Year in Review 2017-2018. The report contains an introductory letter from Administrator Pruitt, who states that he has been “hard at work enacting President Donald Trump’s agenda during [his] first year as EPA Administrator.” The report highlights accomplishments at EPA over the past year, with a focus on the roll back of regulations from the Obama Administration, such as the Clean Power Plan and the Waters of the United States Rule. Administrator Pruitt stated that “[i]n year one, EPA finalized 22 deregulatory actions, saving Americans more than $1 billion in regulatory costs.”
According to the report, Administrator Scott Pruitt set forth a “back-to-basics agenda” with three objectives:
- Refocusing the Agency back to its core mission
- Restoring power to the states through cooperative federalism
- Adhering to the rule of law and improving Agency processes
The report also identifies EPA’s “core mission” as “clean air, land, and water,” and argues that in recent years, “central responsibilities of the Agency took a backseat to ideological crusades, allowing some environmental threats – like cleaning up toxic land – to go unaddressed.” In light of these alleged lapses, EPA states that:
By Andi Kenney
On January 19, 2018, OSHA issued a citation to Spirit Aerosystems, Inc., alleging one willful and five serious violations of the OSHA hexavalent chromium standard (29 CFR 1910.1026) and assessing $194,006 in penalties.
In the citation, OSHA alleges that the manufacturer of aerostructures (including portions of fuselages) willfully failed to prevent employee exposures to levels above the permissible exposure limit (PEL) of 5.0 ug/m3 8 hour time weighted average (TWA) and to implement feasible engineering and work practice controls “to reduce employee exposure to the lowest achievable level.” The citation notes an employee who was sanding and grinding was exposed to hexavalent chromium at 9.0 ug/m3 on a time weighted average, 1.8 times the PEL.
The citation further alleges that Spirit Aerosystems did not perform periodic monitoring every three months, did not perform monitoring when process changed, did not demarcate a regulated area for hex chrome, allowed employees to leave the hex chrome work area without removing contaminated clothing and equipment, and did not adequately train employees regarding the OSHA hex chrome standard.
The citation is notable for several reasons. First, it is an indication that OSHA is still actively enforcing the hex chrome standard. Second, it underscores OSHA’s position that an increased scheduled work load is a process change that would require additional exposure monitoring. Third, it affirms that the aircraft painting exception, which establishes a 25 ug/m3 exposure limit, does not apply to grinding and sanding operations. Finally, it raises questions about how far an employer has to go to reduce exposures—does the employer’s obligation to implement controls require it to reduce exposure “to the lowest achievable level” as alleged in the citation or does the employer meet its obligation if it reduces exposure to the PEL?
On February 7, 2018, the Federal Energy Regulatory Commission (“FERC”) moved for a last-minute review to save the Sabal Trail natural gas pipeline just hours before it was scheduled to be shut down. In a motion filed on Tuesday in the U.S. Court of Appeals for the District of Columbia, FERC asked the court for a 45-day stay of issuance of the court’s mandate to allow the agency to issue an order on remand reauthorizing certificates for the pipeline project.
The request stems from an August 22, 2017 D.C. Circuit opinion concluding that FERC did not adequately analyze the impacts of greenhouse gas (“GHGs”) emissions that would result from the construction and operation of the $3.5 billion pipeline. The court concluded that FERC had failed to comply with the requirements of the National Environmental Policy Act (“NEPA”) because the agency’s Environmental Impact Statement (“EIS”) did not consider the indirect environmental effects of authorizing the transportation of natural gas to be burned, which in turn generates GHG emissions. The court remanded the matter back to FERC to give a quantitative estimate of the downstream GHG emissions that will stem from the pipeline or explain specifically why it was not able to do so.
On January 31, 2018, the D.C. Circuit court denied FERC’s petition to rehear the issue, setting the stage for a one week countdown to the shutdown of the major gas network, which has been operating since June 2017. On Monday, FERC took a major step to keeping the pipeline in service by issuing a revised supplemental environmental impact statement (“SEIS”), but neglected to state whether it would issue an emergency order to prevent shutdown of the Sabal Trail pipeline. However, it is unclear if FERC has the authority to immediately reissue certificates to the pipeline prior to a thirty day wait period following the issuance of the SEIS. This may explain why the agency elected to request a short stay from the court for it to reauthorize the pipeline.
In its February 7th motion, FERC asserted that “[i]f pipeline service is halted, Florida Power & Light may not be able to meet its customers’ electricity needs efficiently or reliably.” The utility services an estimated 4.9 million households in Florida. FERC’s motion automatically stays the court’s mandate until February 16, which is when responses to the motion are due.
It is also unclear whether the D.C. Circuit will ultimately approve FERC’s SEIS. The document provides an estimate that the pipeline could increase Florida’s GHG emissions by 3.6 to 9.9% over 2015 levels. However, the agency declined to comment on the potential environmental effects from that increase, noting there was no “suitable” scientific method for doing so. We will continue to follow this issue and will provide updates as events warrant.
On January 15, 2018, the European Chemicals Agency (“ECHA”) added seven chemicals to its Candidate List of “Substances of Very High Concern” (“SVHC”) for Authorization. These seven chemicals are:
- Cadmium nitrate
- Cadmium hydroxide
- Cadmium carbonate
- 1,6,7,8,9,14,15,16,17,17,18,18- Dodecachloropentacyclo[184.108.40.206,9.02,13.05,10]octadeca-7,15-diene (“Dechlorane Plus”TM) [covering any of its individual anti- and syn-isomers or any combination thereof]
- Reaction products of 1,3,4-thiadiazolidine-2,5-dithione, formaldehyde and 4-heptylphenol, branched and linear (RP-HP) [with ≥0.1% w/w 4-heptylphenol, branched and linear].
If you are still with me after having read through those chemical names, here is some more useful information. Once a chemical is listed on ECHA’s Candidate List, it triggers a number of regulatory obligations, including the requirement that importers of products containing one or more SVHC substances above 0.1 percent by weight file notifications with ECHA. In addition, chemicals on the Candidate List may be subsequently targeted by ECHA for phase-out.
According to a statement by ECHA in conjunction with its notice of listing, these specific seven chemicals are not widely used and ECHA does not view this listing as imposing substantive industry-wide regulatory burdens. There are now 181 substances on ECHA’s Candidate List. Please click here to go to the ECHA website for a list of 181 SVHCs.
As 2017 draws to an end, we wanted to thank everyone that follows our Corporate Environmental Lawyer blog. 2017 has been an interesting year and we have enjoyed providing information on critical environmental, health and safety issues for the regulated community. As part of the year in review, we thought it might be interesting to highlight the most popular posts from each of the four quarters in 2017.
- Trump Administration: 2017 Insights
- New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
- World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
- Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
- Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water
- Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
- Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
- Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants
- News of OECA’s Demise May be Greatly Overstated
- EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule
- Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline
- Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
- Who is in Charge of Protecting the Environment—The Role of U.S. EPA and State Environmental Agencies During a Hurricane
- Shell Latest Target of CWA Climate Change Citizen Suit
- New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?
- Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks
- Dumpster Diving Results in $9.5M Penalty Recovery for California
- Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline
- EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
- Imagine a Day Without Water
We look forward to continuing to blog on breaking environmental, health and safety issues and we are sure that we will have plenty to blog about in 2018. Warmest wishes for a wonderful holiday season.
Steve Siros and Allison Torrence
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.
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.
On 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.
By Andi Kenney
On October 26, 2017, EPA published a proposed rule requiring manufacturers and importers of mercury and mercury-added products or any other person who intentionally uses mercury in a manufacturing process to provide EPA with both quantitative and qualitative information about the elemental mercury and mercury compounds involved in their activities. 82 FR 49564 (October 26, 2017).
Under Section 8(b)(10)(B) of the Toxic Substances Control Act (TSCA), EPA must publish an inventory of mercury supply, use, and trade in the United States” in 2017 and every year thereafter. This reporting rule is authorized by Section 8(b)(10)(D) of TSCA which requires covered persons to provide EPA with the information the Agency needs to prepare that inventory.
The list of potentially affected industries is wide ranging and includes, among many others, mining, chemical manufacturing, plastics and resin manufacturing, medicinal and pharmaceutical manufacturing, coating and adhesive manufacturing, tire and rubber product manufacturing, fabricated metal products (including ammunition) manufacturing, circuit board and semiconductor manufacturing, office and industrial equipment manufacturing, watch and measuring equipment manufacturing, lighting and household appliance manufacturing, battery and electrical equipment manufacturing, boat and RV manufacturing, toy and jewelry manufacturing, and hazardous and non-hazardous waste facilities.
The reporting requirements focus on those who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process. The proposed rule would not apply to persons generating, handling or managing mercury-containing waste, unless that person manufactures or recovers mercury and uses it or stores it for use. Nor would it apply to those merely engaged in the trade of mercury, those importing mercury-added products for personal use and not for commercial purposes, those manufacturing mercury incidentally (such as by burning coal) or those importing a product that contains mercury solely as a component in a mercury-added product (such as a toy with a mercury-added battery). It would, however, apply to mercury or mercury-containing by-products manufactured for commercial purposes and to the storage of mercury and mercury-added products after manufacture.
EPA is proposing an initial reporting deadline of July 1, 2019, with subsequent reports due every three years thereafter. Each report would cover only the preceding calendar year.
EPA is accepting comments on the proposed rule until December 26, 2017.
On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:
- CBA Environmental Law Committee
- CBA Young Lawyers Section Environmental Law Committee
- ISBA Environmental Law Section
- ABA Section of Environment, Energy, and Resources
- Air & Waste Management Association Lake Michigan States Section
- DRI Toxic Tort and Environmental Law Committee
Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.
Details for this event are below. If you would like to join us at this reception, please RSVP here.
Environmental Attorney Reception
September 14, 2017 | 5:00 pm to 7:00 pm
Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654
As the cleanup, rebuilding, and recovery continues in the aftermath of Hurricane Harvey, there has been increasing news coverage about the environmental consequences resulting from impacts of this devastating storm in Texas. We have all seen the coverage on the Arkema SA chemical plant explosion and fire in Crosby, Texas, as well as this weekend’s news that 13 Superfund sites in the Houston area have been flooded and are experiencing possible damage. What we have not heard much about is action on the part of the Texas Commission on Environmental Quality (TCEQ) to do its part to allow residents and their commercial and industrial businesses to recover.
Last week, TCEQ issued a Request for Suspension of TCEQ Rules that may prevent, hinder, or delay necessary action in coping with Hurricane Harvey. The rules suspended in order to manage Hurricane Harvey impacts address regulatory obligations related to air, water, storage tank, fuel and waste management. In addition, TCEQ has developed a Hurricane Response webpage and made clear the Agency's priority is the recovery efforts helping to restore water and wastewater services as well as to assess damage, manage debris, and bring other critical services back online.
Most substantive federal environmental laws and their implementing regulations also provide emergency exemptions that can be triggered following any natural or manmade disaster to ensure laws do not interfere with rescue and recovery efforts. Most emergency exemptions require a declaration or finding on the part of the United States Environmental Protection Agency (EPA) or of another high-ranking government official. We will address EPA's Hurricane response actions in future blogs.
At a time when the residents of Texas need the best of their government, TCEQ is providing an excellent example of support, help, and a willingness to do what is right under the circumstances. Kudos to TCEQ!
Pro-Policyholder Talc-Related Asbestos Exposure Case Endorses Favorable Allocation Rule and Rejects Pollution Exclusion
A recent opinion from the Connecticut Appellate Court, R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 156 A.3d 539 (Conn. App. Ct. 2017), aides policyholders seeking coverage for asbestos-related long-tail liability claims under Commercial General Liability policies when responding to certain coverage defenses, including the allocation of risk for uninsured policy periods and the application of the pollution exclusion. In Vanderbilt, the court ruled on two significant issues—first, it endorsed the “unavailability of insurance” exception to the pro rata allocation method to allocate uninsured policy periods to the insurer, and second, it rejected the application of the pollution exclusion to talc-related asbestos exposure. As to the first, the court confronted a novel question under Connecticut law regarding whether the policyholder or the insurer should bear the risk for periods during which insurance coverage was commercial unavailable—commonly known as the “unavailability of insurance” exception to the pro rata allocation method. The court affirmed the existence of the exception, holding that the insurer should bear this risk. As to the second, the court rejected that the pollution exclusion applied, reasoning that the exclusions at issue barred coverage only when the exposure arose from “traditional environmental pollution” migrating through property or into the environment, but did not extend to “inhalation or ingestion of asbestos dust released in small quantities in an indoor environment during everyday activities.”
The Department of Homeland Security (DHS) announced yesterday its plans to waive numerous environmental laws to allow more expedient construction of barriers and roads in the vicinity of the international border near San Diego. The decision was signed by then DHS Secretary John Kelly and applies to a 15-mile border segment in San Diego where the Agency plans to upgrade fencing and build border wall prototypes.
DHS issued the waiver pursuant to its authority in Section 102 of the 2005 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law grants the DHS Secretary a number of authorities necessary to carry out DHS’s border security mission. Citing this authority, the DHS notice makes clear that these infrastructure projects will be exempt from complying with critically important environmental laws such as the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and other laws related to wildlife, conservation, cultural and historic artifacts, and the environment.
This action has been under consideration by DHS and the subject of much discussion among environmental activists. The Center for Biological Diversity already sued DHS earlier this year seeking an updated environmental review of the southern border infrastructure projects.
According to yesterday’s notice, “…while the waiver eliminates DHS’s obligation to comply with various laws with respect to the covered projects, the Department remains committed to environmental stewardship with respect to these projects. DHS has been coordinating and consulting—and intends to continues to do so—with other federal and state agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.”
Even in the wake of everything ongoing in D.C with the new Administration, this action is extraordinary and inconsistent with typical federal government practices, except in the case of an emergency or other exigent circumstances. The final decision will appear in the Federal Register soon.
The Trump Administration signaled its plans to renegotiate the 1994 North American Free Trade Agreement (NAFTA) by issuing the Summary of Objectives for the NAFTA Renegotiation this month. President Trump committed to renegotiate NAFTA in order to obtain more open, equitable, secure, and reciprocal market access with our two largest export markets in Canada and Mexico.
Environmental considerations currently are managed in a side agreement to NAFTA, but one of the Administration’s priorities is to incorporate environmental provisions into the new NAFTA. The Summary outlines 13 environmental issues to be addressed as part of the renegotiation process:
- Bring the environmental provisions into the core of the agreement, rather than in a side agreement.
- Establish strong and enforceable environmental obligations that are subject to the same dispute settlement mechanism that applies to other enforceable obligations of the agreement.
- Establish rules that will ensure that NAFTA countries do not waive or derogate from the protections afforded in their environmental laws for the purpose of encouraging trade or investment.
- Establish rules that will ensure that NAFTA countries do not fail to effectively enforce their environmental laws through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the parties.
- Require NAFTA countries to adopt and maintain measures implementing their obligations under select Multilateral Environmental Agreements (MEAs) to which the NAFTA countries are full parties, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
- Establish a means for stakeholder participation, including commitments for public advisory committees, and a process for the public to raise concerns directly with its government if they believe it is not meeting its environmental commitments.
- Require NAFTA countries to ensure access to fair, equitable, and transparent administrative and judicial proceedings for enforcing their environmental laws, and provide appropriate sanctions or remedies for violations of their environmental laws.
- Provide for a framework for conducting, reviewing, and evaluating cooperative activities that support implementation of the environmental commitments, and for public participation in these activities.
- Establish or maintain a senior-level Environmental Committee, which will meet regularly to oversee implementation of environmental commitments, with opportunities for public participation in the process.
- Combat illegal, unreported, and unregulated (IUU) fishing, including by implementing port state measures and supporting increased monitoring and surveillance.
- Establish rules to prohibit harmful fisheries subsidies, such as those that contribute to overfishing and IUU fishing, and pursue transparency in fisheries subsidies programs.
- Promote sustainable fisheries management and long-term conservation of marine species, including sharks, sea turtles, seabirds, and marine mammals.
- Protect and conserve flora and fauna and ecosystems, including through actions by countries to combat wildlife and timber tracking.
Critics note that the above environmental considerations look much like the provisions in the now defunct Trans-Pacific Partnership that many environmental advocates opposed.
The first round of talks on the possible renegotiation of NAFTA is scheduled to take place in Washington August 16-20. The Summary confirms that “…the new NAFTA will be modernized to reflect 21st century standards and will reflect a fairer deal, addressing America’s persistent trade imbalances in North America.” While part of the agenda, it does not appear that environmental considerations will be a critical portion of these upcoming negotiations.
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?
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.