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Corporate Environmental Lawyer Blog

November 23, 2015 Help Yourself To Some Thanksgiving Turkey With A Side Of Renewable Energy

Torrence photo

By Allison A. Torrence

Here is some food for thought as we get ready to gobble down some turkey this Thanksgiving: A new $25 million plant under construction in North Carolina will convert turkey waste into energy. Prestage AgEnergy will use 55,000 tons of turkey litter a year to produce the equivalent of 95 million kilowatt hours of electricity and feed that renewable electricity back to the grid.

North Carolina has a lot of turkey waste on hand – it ranks second in the nation behind Minnesota in turkey production. In light of its prolific turkey farming, in 2007, the state passed an energy policy mandate that requires utilities to use a small amount of poultry waste-generated power. This will not be the first turkey-waste energy plant – Minnesota currently has a 55-megawat power plant designed to burn poultry waste as its primary fuel. However, the new North Carolina plant will reportedly be the first facility designed to run on 100-percent turkey waste.

Local reporting on the Prestage AgEnergy plant can be found here and here.

CATEGORIES: Climate Change, Consumer Law and Environment, RCRA, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

November 11, 2015 Lynn Grayson and Steven Siros Publish Article on U.S. Legal and Regulatory Developments in Nanotechnology

Allison Torrence photo

 By Allison A. Torrence

 

Lynn Grayson and Steven Siros have published an article in the most recent issue of DRI’s Toxic Tort and Environmental Law Newsletter titled Nanotechnology: U.S. Legal and Regulatory Developments. In the article, Ms. Grayson and Mr. Siros discuss how nanotechnology affects every sector of the U.S. economy and impacts our lives in a myriad of ways through the 1,600 nanotechnology-based consumer goods and products we use on a daily basis. The article provides an overview of how nanotechnology is defined, insights on the regulatory framework and recent developments, possible concerns about nanomaterial use, and risk management considerations for U.S. businesses utilizing nanotechnology.

The full article is available here.

CATEGORIES: Air, Consumer Law and Environment, FIFRA, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

September 16, 2015 US EPA Publishes Proposed List of National Enforcement Initiatives for FY2017–19

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Industry photo

By Alexander J. Bandza

On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19.  This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. 

CATEGORIES: Air, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, Water

August 27, 2015 U.S. EPA Releases One-Week Internal Review on the Colorado Mine Blowout, Concludes the Incident Was “Inevitable”

Colorado Gold Mine Release photo

Bandza_Alexander_COLORBy Alexander J. Bandza

Earlier this week, the U.S. EPA released its “Internal Review of the A
ugust 5, 2015 Gold King Mine Blowout,” which provides the EPA Internal Review Team’s “one week rapid assessment” of the events and potential factors contributing to the Colorado mine adit blowout earlier this month.  The Review sets out a series of conclusions and recommendations, many of which lay the foundation for absolving the U.S. EPA of any wrongdoing here while proposing extensive recommendations for the future.

CATEGORIES: Cercla, Hazmat, RCRA, Real Estate and Environment, Water

August 9, 2015 State Department Approves Two Cross-Border Pipelines

Pipeline photoGrayson photoBy E. Lynn Grayson

Presidential permits are required for cross-border pipeline projects, and the State Department recently approved transferring ownership of two existing cross-border pipelines.

Cross-border pipelines have been the subject of much controversy, primarily related to the highly-publicized Keystone pipeline. Despite a flurry of legislative activity earlier this year, the fate of the Keystone pipeline that would expand Canadian oil distribution to the U.S. remains uncertain.

The State Department approved the transfer of ownership of the Express Pipeline to Spectra Energy Partners. This pipeline runs from Hardisty, Alberta, Canada to Casper, Wyoming. The permit allows Spectra to connect, operate, and maintain the existing pipeline facilities at the U.S.-Canada border to transport crude oil.

The State Department also approved the transfer of ownership of a pipeline running from El Paso, Texas to the Rio Grand River on the U.S.-Mexico border to Magellan Pipeline Company. The permit allows Magellan to connect, operate, and maintain existing pipeline facilities at the U.S.-Mexico border to transport liquid petroleum products.

In addition to the Keystone pipeline controversy, cross-border pipelines in general are the subject of significant public and regulatory scrutiny. Another recent example is the Alberta Clipper pipeline from Hardisty, Alberta, Canada to Superior, Wisconsin, where the State Department was accused of accelerating pipeline approval from Enbridge Energy—facts now at issue in litigation filed by a coalition of environmental groups opposed to the pipeline.

CATEGORIES: Cercla, Climate Change, RCRA, Real Estate and Environment, Sustainability, Toxic Tort

July 22, 2015 EPA Finalizes 2015 Revisions to the 1988 RCRA Underground Storage Tank Regulations

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Bandza photoBy Alexander J. Bandza

Last week, on July 15, 2015, the US EPA revised the 1988 underground storage tank (UST) regulation and the 1988 state program approval (SPA) regulation.  Some of these changes had their roots in the Energy Policy Act of 2005, which set out additional requirements in states that received federal RCRA Subtitle I money from EPA.  Part of the impetus for this regulation was to apply these changes to Indian country and all states.  Other changes relate to revising the regulations in light of technological changes and challenges that have surfaced over the years.  The effective date of the regulations is October 13, 2015.  Some of the key changes are set out below.

CATEGORIES: Hazmat, RCRA, Real Estate and Environment, Sustainability, Water

June 5, 2015 D.C. Circuit Rejects Enviro and Industry Challenges to EPA’s Nonhazardous Secondary Materials Rule; Implications for Combustion Standards Remain

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By Alexander J. Bandza

Last week, the D.C. Circuit issued an unpublished per curiam decision in Solvay USA Inc. v. U.S. EPA, No. 11-1189 (D.C. Cir.), rejecting all arguments from both environmentalists and industry against EPA’s non-hazardous secondary material (NHSM) regulations under the Resource Conservation and Recovery Act (RCRA).  By way of background, the characterization of non-hazardous secondary materials pursuant to the NHSM has implications under the Clean Air Act (CAA) for the standards by which those materials can be incinerated in combustion units. 

 

CATEGORIES: Air, Climate Change, Hazmat, RCRA

June 1, 2015 Corporate Environmental Lawyer celebrates five years of blogging with a new design!

In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:

  1. Mobile and tablet responsive technology
  2. A trending-categories cloud list
  3. Easy-to-use social sharing buttons
  4. Streamlined navigation menus

  5. Access to all five years of posts

In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics.  We look forward to continuing to provide content covering the issues that are driving changes in environmental law.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Keri L. Holleb Hotaling, Stephen H. Armstrong, Robert L. Byman, Anne Samuels Kenney (Andi), Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

May 27, 2015 EPA Revises Its Regulatory Agenda, A Flurry of Activity Expected in the Next Few Months

Bandza photoBy Alexander J. Bandza

Last week, the EPA-specific listing on the website of the Office of Information and Regulatory Affairs was updated with timelines on the EPA’s regulatory efforts.   Of potential interest, in chronological order of expected release, are the following rules:

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

May 1, 2015 EPA Request for Public Comments on 1,4-Dioxane

Grayson photoBy E. Lynn Grayson

On April 28, 2015, EPA announced the availability of a problem formulation and initial assessment document for the Work Plan Chemical 1,4-Dioxane and opened a 60-day public comment period until June 29. The notice also seeks input on EPA's Office of Pollution Prevention and Toxics' (OPPT) initial concerns about the industrial solvent 1,4-Dioxane.

Following receipt of comments on the problem formulation and initial assessment document and consideration of any additional data or information received, EPA will initiate a risk assessment which is the process to estimate the nature and probability of adverse health and environmental effects in humans and ecological receptors from chemical contaminants that may be present in the environment.

CATEGORIES: Cercla, Climate Change, Hazmat, OSHA, RCRA, Sustainability, TSCA

April 30, 2015 Revised TSCA Reform Bill Approved by Senate Environment and Public Works Committee

Siros photoBy Steven M. Siros

At long last, with a 15-5 bipartisan vote, a Senate bill that would amend the Toxic Substances Control Act (TSCA) moved out of the Senate's Environment and Public Works Committee.  Notwithstanding continuing objections from Senator Boxer, the bill that came out of the committee contained a host of changes from the original bill that were intended to address concerns that had been raised by democrats, environmental and public health advocates and U.S. EPA.

Several of these key changes include:

Existing Information to Increase Efficiency

  • U.S. EPA will incorporate existing information regarding hazard and exposure published by other Federal agencies or the National Academics into safety assessments, with the objective of increasing the efficiency of the safety assessments and determinations where that information is available, relevant, and scientifically reliable.

Unreasonable Risk

  • The term "unreasonable risk" is either clarified to exclude consideration of costs or other non-risk factors to conform with the safety standard definition, or the word "unreasonable" is dropped.

Deadline for Implementing Restrictions and Prohibitions

  • Compliance deadlines for risk management rules are to be "as soon as practicable," and bans and phase-outs are to be implemented "in as short a period as is practicable."

Access to CBI Information

  • If U.S. EPA bans or phases out a chemical, there is a rebuttable presumption that information on that chemical should no longer be protected as confidential business information.

State Co-enforcement

  • States allowed to co-enforce, with condition that penalties can be collected from either Federal government or State and penalties at the state level cannot be greater than under federal TSCA.

Pre-emption

  • Clarification that State air and water laws are not pre-empted.
  • State information collection and disclosure laws are protected from pre-emption.
  • Any State chemical regulation is permanently protected from pre-emption that is in effect before August 1, 2015. 

Designation of a Low Priority Chemical

  • 90 days of public comment for all listing decisions.
  • Public can challenge a low priority decision within 60 days of listing.

Clarifications of High Priority Designation

  • U.S. EPA required to designate a chemical as high priority based on "significant" hazard and "significant"  exposure, and may designate a chemical as high priority if it has either characteristic.

PBTs

  • When setting the initial list of high priority chemicals, U.S. EPA must give preference to TSCA Work Plan Chemicals that are persistent and bioaccumulative.
  • PBTs added as a criteria for U.S. EPA to consider when making prioritization determinations.
  • In risk management, U.S. EPA is required to select restrictions for PBTs that reduce exposure "to the maximum extent practicable."

State Waivers

  • Pre-emption of new state regulatory actions starts when the scope of uses of a chemical is defined (maximum 6 months after a substance is identified as a high priority) and ends when the safety determination is made (no more than 5 years after a substance is identified as a high priority).
  • If the deadline for the safety determination is missed, State waivers are automatically granted.
  • In addition, U.S. EPA "shall" approve a state request for a waiver if the state meets the following criteria:
    • The State requirement doesn't violate Federal law.
    • The State requirement doesn't unduly burden interstate commerce.
    • The State's concern about the chemical substance or the use of the chemical substance is based in peer-reviewed science.
  • If U.S. EPA fails to make a decision on a state waiver within 90 days, the waiver is approved.

Industry Petitioned Chemicals

  • In addition to high-priority chemicals designated by U.S. EPA, manufacturers and processors can petition U.S. EPA to designate additional non-high priority chemicals for safety assessments and determinations.
  • The industry would pay 100% of the cost of the assessment.
  • These chemicals can amount to a minimum of 25% and a maximum of 30% of the cumulative total number of high priority chemicals.

U.S. EPA Work Plan Chemicals

  • For chemicals that U.S. EPA has already identified as high risk chemicals on the TSCA Work Plan, manufacturers can petition for those chemicals to move to a safety assessment and determination, and pay 50% of the cost. U.S. EPA has full discretion to approve or deny these industry petitions.

The revised Senate bill seems to enjoy wide bi-partisan support and has been embraced by several advocacy groups, including the Environmental Defense Fund  However, Senator Boxer has already indicated that she intends to pursue additional changes to the bill, stating "if anyone thinks the fight is over, it is just beginning." 

Another bill to amend TSCA is also making its way through the House of Representatives.  The discussion draft, captioned the "TSCA Modernization Act of 2015" was released by Representative John Shimkus.  The House's discussion draft is much narrow in scope than the bill making its way through the Senate and has yet to make its way out of the House Energy and Commerce Subcommittee on Environment and Economy. 

Assuming that the House bill makes it out of committee, the expectation is that the two chambers will have to reconcile the differences in the two bills in a conference committee.

CATEGORIES: Cercla, Climate Change, FIFRA, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA

PEOPLE: Steven M. Siros

April 21, 2015 Earth Day 2015: Beach Clean Up!

Grayson photoBy E. Lynn Grayson Jenner & Block Earth Day 2015 logo

 

On Friday, April 17th, Jenner & Block partnered with ComEd and Exelon to clean up the 12th Street beach at Northerly Island, in cooperation with the Alliance for the Great Lakes. Our group picked up over 85 pounds of broken glass, plastic beverage containers, food wrappers, cigarettes, and other miscellaneous trash and debris.

The Adopt-a-Beach program is the premier volunteer initiative for the Alliance for the Great Lakes. Teams remove litter and enter results into the Adopt-a-Beach online system to share with local beach authorities, educate the public, and improve the beaches and the health of the Great Lakes.

This picture shows our team after clean up efforts at 12th Street beach: 

Beach Day Cleanup photo

 

What will you do to celebrate Earth Day 2015? How about participating in the Adopt-a-Beach program?

To learn more about beach clean up opportunities or to schedule an event, visit http://www.greatlakes.org/.

A special thanks to our own Gay Sigel for organizing the Jenner & Block team. Thanks, Gay!

CATEGORIES: Cercla, Climate Change, Greenhouse Gas, Hazmat, RCRA, Sustainability, Toxic Tort, TSCA, Water

April 20, 2015 Earth Day 2015: Water Scarcity—Important Developments

Grayson photoBy E. Lynn Grayson

While much progress has been made in the U.S. to address water quality since the first Earth Day in 1970, increasingly the critical issue of the day is water quantity and specifically sufficient availability of safe water for everyone. According to the World Water Council, 1 in 9 people in the world, or approximately 750 million individuals, lacks access to safe water. In January 2015, the World Economic Forum identified water scarcity as the #1 global risk based upon possible impact to society. These issues exist worldwide, including throughout the U.S.

This month, California Governor Jerry Brown announced the state's first-ever mandatory effort to cope with four years of the worst drought in California's history including a 25% use reduction on cities and towns. There are 5 things you need to know about California's water situation, according to National Geographic's ongoing research and study of water scarcity issues in the Western U.S.:

  1. The state (and much of the West) relies heavily on snowpack each winter to resupply surface water streams and lakes. Because of a lack of winter storms and record high temperatures this past winter, snowpack in California is at an all-time low. This is the fourth consecutive year that the snowpack has been below normal. The state's hydropower supply is also threatened when snowpack is scarce.
  2. When surface water supplies are low, hidden water supplies beneath the surface in aquifers, or groundwater, are drilled to make up the shortfall. A large aquifer under the Central Valley is being rapidly depleted to make up for shortfalls in surface water supply. A 2011 study indicated that the Central Valley Aquifer is losing an amount of water each year equivalent to the nearly 29 million acre-feet of water found in Lake Mead, the nation's largest surface reservoir on the Colorado River. (An acre-foot is one acre of ground covered one foot deep in water.) California for the first time last year passed legislation regulating groundwater use, but those restrictions will not come into effect for years.
  3. While the 25 percent water use restrictions announced last week are intended to help reduce demand, most of the water in California is used for farming, which was largely not included in Brown's announcement on restrictions. California's farms produce and export fruits and vegetables, hay for livestock, and meat and dairy products. Surface water for farms is allocated from state and federal water projects. Water supply restrictions for farmers may be announced soon by the state, but farmers have been drilling groundwater to compensate for surface supply shortages. Last week's rules require only that agricultural operations improve their reporting of water use to the state.
  4. California is not the only state in the West facing water supply issues. Winter snowpack in Oregon and parts of Washington was far below normal. The Colorado River Basin, which supplies water to Phoenix, Las Vegas, Los Angeles, and San Diego, has also been in a drought for more than a decade, and the river basin's aquifers have been declining, too. 
  5. When California faced a major drought in the late 1970s, fewer than 20 million people lived in the state. Now nearly 40 million live there. While Californians have drastically improved the efficiency of their water use in recent years, if rain and snow do not arrive later this year, the supply of groundwater—much of which is non-renewable—will continue to decline as it is used to make up for surface shortages.

The good news is there are two technical advancements that are currently available to mitigate water scarcity issues—one more mainstream and the other yet to be a "politically correct" option given public perceptions:

  1. Desalination—this age old process of converting seawater to drinking water is gaining in popularity despite costs and energy demands. A $1B plant is near completion by Poseidon Resources in Carlsbad, CA and will be the largest desalination plant in the Western Hemisphere. 13-15 plants are proposed for California between Los Angeles and San Francisco. There are 300 plants in the U.S. today and over 12,500 plants worldwide, particularly in the Middle East.
  2. Janicki Bioenergy's Omni Processor—the Bill and Melinda Gates Foundation has invested in this low cost, hyper-efficient sewage treatment plant which produces clean drinking water that meets both FDA and World Health Organization standards AND generates the very energy it requires to run. Janicki Bioenergy, based in Seattle, WA, has a prototype operating in Washington State and this year enters the developing world with a plant in Dekar, Senegal. Here's how it works:
  • The sewage sludge is fed into the plant by conveyor belt and dried in a tube that separates solid waste from water. The Omni Processor's intensely hot incinerator reaches 1,000 degrees Celsius, scorching enough to kill all pathogens and, perhaps more important for those living downwind, to operate without the expected offensive smell.
  • Converted into vapor, the water is spun in a centrifuge to remove remaining particles and then fed through two layers of filters. Next, it is cooled and condensed, at which point it is filtered one more time. The latest model can yield 86,000 liters of pure drinking water each day.
  • The remaining solids are then fed into an incinerator, yielding a high-powered steam that drives a generator, which in turn produces the very electricity that runs the plant (the Dakar unit produces 150 kW per day), plus excess energy that can be diverted back to the surrounding community. Another byproduct is a phosphorus-rich, disease-free ash that can be used as fertilizer. And the circle of life continues.

While some solutions exist, water remains a precious natural resource and there is no alternative. Every sector of society needs to do their part to conserve, protect and restore water resources in conjunction with governmental action to regulate quality concerns, improve infrastructure and water distribution systems, and address use limitations when appropriate.

For more information about water security, recent developments, and ongoing efforts to ensure the availability of access to safe water for everyone, visit Water.org at http://water.org or World Water Council at http://worldwatercouncil.org/.

CATEGORIES: Cercla, Climate Change, Hazmat, RCRA, Sustainability, Water

April 17, 2015 Earth Day 2015 Special Series — April 20-24, 2015

Grayson photoBy E. Lynn Grayson

In celebration of Earth Day 2015, the Corporate Environmental Lawyer blog will host a special campaign April 20-24 featuring a daily Earth Day trivia question, as well as unique news and stories about Earth Day events and activities taking place around the world, in addition to important developments in environmental law. As environmental lawyers, this is a good day for us to remember the contributions our clients and friends make to improving the environment in the communities where we live and work.

Earth Day 2015 commemorates the 45th anniversary of the first Earth Day held on April 22, 1970. This year more than 1 billion people in 192 countries will participate in Earth Day activities and events, making it the largest civic observance in the world.

To celebrate Earth Day, the Global Citizen 2015 Earth Day organizers will host a free event on the National Mall in Washington, D.C. on Saturday, April 18, featuring presentations and remarks by U.S. and UN leaders, as well as entertainment throughout the day from No Doubt, Usher, Fall Out Boy, Mary J. Blige, Train, and others. This special event will be web streamed live at www.globalcitizen2015earthday.org.

You are invited to follow and participate in our Earth Day special series next week at http://environblog.jenner.com  and follow us on Twitter @JennerBlockEHS.

If you have any questions about our Corporate Environmental Lawyer blog or this special series, please feel free to contact me at lgrayson@jenner.com or 312-923-2756.

CATEGORIES: Air, Climate Change, RCRA, Sustainability, Water

April 17, 2015 EPA E-Manifest Implementation Update

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By E. Lynn Grayson

On October 5, 2012, President Obama signed into law the Hazardous Waste Electronic Manifest Establishment Act (PDF), which authorizes the EPA to implement a national electronic manifest system. Commonly referred to as "e-Manifest," this national system is envisioned to be implemented by the EPA in partnership with industry and states.

EPA issued the e-manifest final rule, effective August 6, 2014, authorizing the use of electronic hazardous waste manifests that will become available when EPA establishes a new electronic hazardous waste manifest system (79 Fed. Reg. 7518, February 7, 2014). The modification will provide waste handlers with the option to complete, sign, transmit, and store manifest information electronically in the electronic system. States that currently receive and collect paper manifest copies will receive copies of manifest data electronically from the system.

EPA Connect, the Agency's official blog, provided some updates this week on the status of the e-Manifest implementation process. EPA reported that an important next step is to establish the initial fee structure for users of the system. EPA is working with states and stakeholders to create this fee proposal. According to the blog, EPA anticipates the proposed rule establishing the fee model for the system to be available for public comment by May 2016.

When implemented, EPA estimates this rule will impact 160,000 entities in at least 45 industries that ship off-site, transport, or receive approximately 5.9 million tons of RCRA hazardous wastes annually. These entities currently use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests.

Further insights and regulatory developments are detailed at http://www.epa.gov/osw/hazard/transportation/manifest/e-man.htm.

CATEGORIES: Cercla, Hazmat, RCRA, Water