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November 14, 2018 ATSDR and U.S. EPA--Conflicting Guidance Regarding Emerging Contaminant Regulatory Standards?

  By Steven M. Siros   ASTDR

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.

CATEGORIES: Climate Change, Consumer Law and Environment, Hazmat, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

October 31, 2018 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

  By:  Alexander J. Bandza Image result for FERC Logo

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. 

The FERC Proceedings

In September 2015, PennEast submitted an application under the NGA to construct and operate an interstate natural gas pipeline from Pennsylvania to New Jersey. Numerous parties, including NJCF, intervened in that FERC proceeding and submitted comments to FERC.  FERC’s Office of Energy Projects (“Office”) initiated an environmental review process under the National Environmental Policy Act to study the pipeline’s potential environmental impacts.  The Office concluded that the pipeline would result in some adverse effects, but they would be reduced to “less than significant levels” with certain mitigation measures.  The Office recommended that FERC’s final authorization, if any, should include these mitigation measures.

On January 19, 2018, FERC issued its Certificate Order of “public convenience and necessity” adopting the Office’s findings. FERC then granted a Certificate to PennEast, subject to compliance with environmental and operating conditions. Numerous parties, including NJCF, filed requests for rehearing and moved to stay the Certificate Order.  FERC ultimately issued a final order denying rehearing.  NJCF and others sought review of FERC’s PennEast orders in the D.C. Circuit in addition to instant matter, which contained Constitutional claims and was filed in the New Jersey District Court.

The New Jersey District Court’s Opinion

FERC moved to dismiss NJCF’s complaint for lack of subject matter jurisdiction, arguing that the New Jersey District Court lacked jurisdiction to hear NJCF’s claims because the NGA vests the courts of appeals with exclusive jurisdiction to hear matters relating to a pipeline certificate proceeding.  The Court agreed and dismissed NJCF’s complaint, holding that the “weight of the authorities” is that the NGA explicitly precluded the Court’s review of NJCF’s Constitutional claims.

According to the Court, the NGA confers on FERC “exclusive jurisdiction” over the “transportation and sale of natural gas in interstate commerce.”  Op. at 2.  Another section of the NGA provides that once a party requests rehearing of a FERC order, a party aggrieved by that particular order may seek judicial review in a court of appeals.  Id. at 3.  NJCF argued that the NGA’s statutory language limiting the avenues of review did not apply here because its case instead challenged “FERC’s general pattern and practice of granting unconstitutional certificates.”  Indeed, the Court recognized that NJCF “painstakingly characterize[d] its claims as constitutional in nature . . . — whether a conditional certificate, issued by FERC, that is not sufficient to authorize pipeline construction may constitutionally permit a private company to condemn land for a pipeline that may never be built.”

Despite NJCF’s artful pleading, the Court surveyed the substantial number of decisions holding that because the NGA’s exclusive jurisdiction provision is so broad in scope, the NGA is the “exclusive remedy for matters relating to the construction of interstate natural gas pipelines.”  Id. at 7-18.  The Court had no shortage of colorful language from the collection of “well-settled” authorities in support of its holding: Third and Fourth Circuits—“there is no area of review, whether relating to final or preliminary orders, available in the district court”; Sixth Circuit—“exclusive means exclusive”; Tenth Circuit—it “would be hard pressed to formulate a [statutory framework] with a more expansive scope”; and First Circuit (although under the Federal Power Act’s similar provision)—challenges brought in the district court outside that scheme are “impermissible collateral attacks.”  As a result, according to the Court, NJCF “cannot escape the NGA’s statutory scheme of review by circumventing [its] plain language.”

The Court’s opinion is available here.

CATEGORIES: Climate Change, Hazmat, Sustainability

PEOPLE: Alexander J. Bandza

October 22, 2018 Supreme Court to Hear Dispute Over the United States’ Largest Uranium Deposit

By Matthew G. Lawson

Paladin-langer-heinrich-namibiaOn 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.

CATEGORIES: Hazmat

PEOPLE: Matthew G. Lawson

October 17, 2018 Trump Administration Releases Fall 2018 Regulatory Agenda

Torrence_jpgBy Allison A. Torrence

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
  • Transparency
  • 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:

More information, and EPA's Statement of Priorities, can be found here.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

September 17, 2018 EPA Finalizes Unprecedented NPL Listing

By Matthew G. Lawson

Rockwell GrenadaOn 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.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Matthew G. Lawson

September 12, 2018 Pipeline Company Found Guilty for 2015 California Coastal Oil Spill

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.

CATEGORIES: Climate Change, Hazmat, Sustainability, Water

PEOPLE: Steven R. Englund, Alexander J. Bandza

June 25, 2018 EPA e-Manifest Rules Go Into Effect June 30th

Torrence_jpgBy Allison A. Torrence

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.

Under EPA’s regulations, receiving facilities must submit paper manifests to EPA within 30 days of receipt. However, EPA will allow receiving facilities to submit paper manifests they receive between June 30, 2018, and September 1, 2018, by September 30, 2018. This effectively provides receiving facilities up to 60 additional days, over the existing 30 days provided in the regulations, to submit paper manifests to EPA.

EPA will impose a per manifest fee for each manifest submitted to the system based on the type (paper or electronic) and mode of submission (mail, data upload, image file upload). EPA has stated that it will publish the final fee schedule to the e-Manifest website prior to the system launch on June 30, 2018 (but has not done so to date).

EPA’s current best estimates for the initial per manifest fees are:

  • $4.00 for an electronic manifest (including hybrid)
  • $7.00 for a data file upload of paper manifest data
  • $13.00 for the upload of paper manifest image
  • $20.00 for submission of a paper manifest form by mail

Generators, transporters and disposers of hazardous waste may still use paper manifests, and parties that do so will use EPA’s new five-part form in place of the existing six-part form. However, as shown above, EPA’s manifest fees likely will be significantly higher for paper manifests than for electronic.

For more information, you can check out the following EPA resources:

CATEGORIES: Hazmat, RCRA

PEOPLE: Allison A. Torrence

June 25, 2018 EPA e-Manifest Rules Go Into Effect June 30th

Torrence_jpgBy Allison A. Torrence

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.

Under EPA’s regulations, receiving facilities must submit paper manifests to EPA within 30 days of receipt. However, EPA will allow receiving facilities to submit paper manifests they receive between June 30, 2018, and September 1, 2018, by September 30, 2018. This effectively provides receiving facilities up to 60 additional days, over the existing 30 days provided in the regulations, to submit paper manifests to EPA.

EPA will impose a per manifest fee for each manifest submitted to the system based on the type (paper or electronic) and mode of submission (mail, data upload, image file upload). EPA has stated that it will publish the final fee schedule to the e-Manifest website prior to the system launch on June 30, 2018 (but has not done so to date).

EPA’s current best estimates for the initial per manifest fees are:

  • $4.00 for an electronic manifest (including hybrid)
  • $7.00 for a data file upload of paper manifest data
  • $13.00 for the upload of paper manifest image
  • $20.00 for submission of a paper manifest form by mail

Generators, transporters and disposers of hazardous waste may still use paper manifests, and parties that do so will use EPA’s new five-part form in place of the existing six-part form. However, as shown above, EPA’s manifest fees likely will be significantly higher for paper manifests than for electronic.

For more information, you can check out the following EPA resources:

CATEGORIES: Hazmat, RCRA

PEOPLE: Allison A. Torrence

March 30, 2018 U.S. EPA Removes Portion of Former Refinery Site from NPL: Precursor to More Expedited CERCLA Cleanups?

Siros

 

By Steven M. Siros Pacific Coast Pipeline

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.

CATEGORIES: Climate Change, Hazmat, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

March 8, 2018 Who Wants to Buy a Superfund Site?

 By Matthew G. LawsonSuperfund Sign

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

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Steven R. Englund

March 5, 2018 EPA “Year in Review”

Torrence_jpgBy Allison A. Torrence

Year in ReviewOn 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:

  1. Refocusing the Agency back to its core mission
  2. Restoring power to the states through cooperative federalism
  3. 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:

Administrator Pruitt returned the Agency to its core mission and prioritized issues at the heart of EPA’s purpose: ensuring access to clean air and water, cleaning up contaminated lands and returning them to communities for reuse, improving water infrastructure, and ensuring chemicals entering the marketplace are reviewed for safety. In just one year, EPA made immense progress on these fronts, and the American people have seen real, tangible results.

Topics covered in the report include:

  • Air: Improving Air Quality
  • Water: Provide for Clean and Safe Water
  • Land: Revitalize Land for Reuse
  • Chemicals: Ensure Safety of Chemicals
  • Enforcement
  • Cooperative Federalism and Public Participation
  • Rule of Law

The report concludes with several pages of quotes from elected officials, state environmental agencies, and industry representatives, offering praise for the work done by EPA and Administrator Pruitt:

Leslie Rutledge, Attorney General, Ark.: “Administrator Pruitt’s decision last month to completely re-evaluate the WOTUS rule, minimizing the regulatory burden on countless landowners, demonstrates his commitment to building stronger relationships with state partners.” (07/20/17)

The Year in Review report was tweeted out by Administrator Pruitt and can be found on EPA’s website.

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

PEOPLE: Allison A. Torrence

February 22, 2018 OSHA Makes a Statement on Hex Chrome Enforcement

Andi Kenny

By Andi Kenney  Hex chrome

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?

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, OSHA, Sustainability

PEOPLE: Anne Samuels Kenney (Andi)

February 9, 2018 Will Last-Minute Petition for Review Keep Natural Gas Flowing?

FERCMatthew G. Lawson By Matthew G. Lawson  

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.

 

 

 

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Steven R. Englund

January 23, 2018 ECHA Adds Seven Chemicals to REACH’s “Substances of Very High Concern” List

Siros By Steven M. Siros  ECHA

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:

  • Chrysene
  • Benz[a]anthracene
  • Cadmium nitrate
  • Cadmium hydroxide
  • Cadmium carbonate
  • 1,6,7,8,9,14,15,16,17,17,18,18- Dodecachloropentacyclo[12.2.1.16,9.02,13.05,10]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.

CATEGORIES: Climate Change, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

December 28, 2017 2017: The Corporate Environmental Lawyer Year in Review

Siros Torrence_jpg 

By Steven M. Siros and Allison A. Torrence

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.

Q1 2017:

  1. Trump Administration: 2017 Insights
  2. New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
  3. World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
  4. Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
  5. Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Q2 2017:

  1. Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
  2. Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
  3. Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants
  4. News of OECA’s Demise May be Greatly Overstated
  5. EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Q3 2017:

  1. Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline
  2. Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
  3. Who is in Charge of Protecting the Environment—The Role of U.S. EPA and State Environmental Agencies During a Hurricane
  4. Shell Latest Target of CWA Climate Change Citizen Suit
  5. New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

Q4 2017:

  1. Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks
  2. Dumpster Diving Results in $9.5M Penalty Recovery for California
  3. Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline
  4. EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
  5. 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

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

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros