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May 15, 2019 EPA Adds Seven Sites to the Superfund National Priorities List

Torrence_jpgBy Allison A. Torrence

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On May 13, 2019, U.S. EPA announced that it is adding seven sites to the Superfund National Priorities List (NPL), which includes the most serious contaminated sites in the country. EPA uses the NPL as a basis for prioritizing contaminated site cleanup funding and enforcement activities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA a/k/a Superfund) requires EPA to create a list of national priorities among sites with known releases or threatened releases of hazardous substances throughout the United States, and update that list every year. EPA has established a Hazard Ranking System (HRS) screening tool, which EPA uses, along with public comments, to determine which contaminated sites should be on the NPL.

Under the Trump Administration, EPA has expressed a renewed focus on contaminated site cleanup, declaring the Superfund program to be a “cornerstone” of EPA’s core mission to protect human health and the environment. EPA Administrator Andrew Wheeler reiterated this focus when announcing the seven new NPL sites:

By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse. Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL, the largest number of deletions in one year since Fiscal Year 2005.

Currently, there are 1,344 NPL sites across the United States. The following sites are being added to the NPL per EPA’s announcement:

  • Magna Metals in Cortlandt Manor, New York
  • PROTECO in Peñuelas, Puerto Rico
  • Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia
  • Cliff Drive Groundwater Contamination in Logansport, Indiana
  • McLouth Steel Corp in Trenton, Michigan
  • Sporlan Valve Plant #1 in Washington, Missouri
  • Copper Bluff Mine in Hoopa, California

Information about the NPL sites, including a map of all sites, is available on EPA’s website.

CATEGORIES: Cercla, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

April 24, 2019 Climate Change Lawsuits Brought by Coastal Municipalities and States Against the Fossil Fuel Industry: Trends in Climate Change Litigation, Part 3

Matthew G. Lawson

 

By Matthew G. Lawson Air pollution

 

In the third installment of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are discussing a quickly proliferating form of litigation—lawsuits filed by U.S. states and municipalities against companies that operate in industry sectors which have historically had high levels of greenhouse gas emissions.

At present, the most common target for this litigation in the United States has been the oil and gas industry. In these cases, plaintiff cities or states will often bring suit against a large number of oil and gas companies as members of the collective industry. These claims are usually brought in state court, where the plaintiffs can take advantage of potentially favorable state common law. Using this strategy, plaintiffs have asserted claims against the fossil-fuel industry under state law theories such as nuisance, failure to warn of the known impacts of climate change, and unjust enrichment. Of course, as a counter to this strategy and in hopes of demonstrating preemption under the Clean Air Act, defendants will often look to remove climate change cases to federal court.

In order to satisfy Article III Standing requirements, Plaintiffs in these cases have generally been coastal communities which allege that they have suffered harm or are uniquely at risk of suffering harm from rising sea levels as a result of climate change.

Several examples of this ongoing litigation includes:

  • County of San Mateo v. Chevron Corp. et al. (2018): claims brought by six California municipalities and counties against 37 fossil-fuel companies in California state court. The plaintiffs, alleging they will be damaged by the effects of climate change, brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. Following defendants’ removal of the case to federal court, plaintiffs successfully remanded back to state court on the grounds that their claims did not implicate a federal question or raise preemption issues. Defendants have filed an interlocutory appeal in the Ninth Circuit which is currently being briefed by the parties.
  • City of Oakland v. BP p.l.c. et al. (2018): claims brought by the City of Oakland and San Francisco against fossil-fuel companies under California common and statutory law. Plaintiffs asserted that the industry’s GHG emissions amounted to a “public nuisance” under California law. However, unlike San Mateo, the defendants in City of Oakland were able to successfully remove and ultimately retain the matter in federal court. The Northern District of California court denied plaintiff’s motion to remand the case back to state court based on its finding that federal common law necessarily governed the nuisance claims. The district court subsequently dismissed the suits on the grounds that the plaintiffs’ claims raised a “Political Question” best addressed by the legislature as opposed to judicial branch. This dismissal has also been appealed to the Ninth Circuit.
  • Rhode Island v. Chevron Corp. et al. (2018): The first such case to be brought by a U.S. State, Rhode Island asserted claims for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Environmental Rights Act against 21 fossil-fuel companies. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding, extreme precipitation events, and ocean warming and acidification. Defendants have removed the case to federal court, and the parties are currently briefing Rhode Island’s attempt to remand the case back to state court.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Matthew G. Lawson

April 16, 2019 Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes

Exploring The E-Suite@2x-100

Joel Brammeier

 

 

Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes 

  1. Tell us about Alliance for Great Lakes, including what the organization does and your role.

The Alliance drives the local, state and federal policy reforms and implementation necessary to create a healthy Great Lakes for all people and wildlife, forever. We do this by communicating our thought leadership on issues, building powerful networks of influencers, and educating and activating tens of thousands of volunteers, advocates and donors each year who bring their voices to our priorities.

As President and CEO of the Alliance, I concentrate on three principal responsibilities. The first is making sure that the Alliance is focused on the most significant issues affecting clean water in the Great Lakes. That involves a lot of listening, reading, and prioritizing our work.  Second, I focus on the financial viability of the Alliance.  Fundraising is  is my time to listen to what is important to our supporters and communicate to them   how their investment in clean water is impacting the Great Lakes.  Finally, I work to support the core components of the Alliance—our staff, our volunteers, and the Board of Directors. Everyone needs to be fully engaged, informed, and moving forward to advance the Alliance’s mission.

  1. What is your professional background that you led you to become involved in policy issues concerning protection of fresh water assets and related environmental issues?

After undergrad at Valparaiso University and grad school at University of Michigan, I moved to Chicago in the late 1990s to follow the person who eventually became my spouse. At that time, I began volunteering with a number of NGOs in the Chicago area in order to build my network of relationships and assess how I could become professionally involved. I carried a deep values commitment to non-profit service, mostly due to observing the work of my parents as a teacher and member of the clergy. I had decided on focusing on environmental work in high school after a variety of positive outdoor experiences with my family. After about a year volunteering in various capacities in Chicago, an entry-level position opened up with a group called the Lake Michigan Federation. The combination of my personal value for the Great Lakes that was imprinted on me in childhood, along with my expertise from my education and volunteering, was enough to get me the job. Since that time, I have advanced through the growth and expansion of the organization to become the president of the Alliance for the Great Lakes.

  1. What do you think are the emerging policy issues regarding fresh water assets and the environment of the Great Lakes and how do you think they should be addressed?

It is still all about clean water, but in a much more inclusive and equitable way than is traditional for the mainstream environmental movement. The greatest emerging challenge is how to ensure Great Lakes water is protected and restored in a way that matters personally to all the people of the Great Lakes. For example, drinking water protection is commonly a top reason the public cites as a reason to protect the Great Lakes. The Great Lakes Water Resources Compact & Agreement is a monumental agreement among the states and provinces to ensure water is not diverted to far-flung locations, and that the natural hydrology of the lakes is protected. But this policy doesn’t ensure people can actually access safe, clean and affordable drinking water. It is not credible to say a large natural source of drinking water is truly protected if millions of people who rely on that water cannot safely or reliably use it. And this is today’s unfortunate reality, from manure contamination in northeast Wisconsin, to toxic algae in Lake Erie, to lead and PFAS contamination across the region. Often those harms are falling on people who are already suffering an outsize burden in other parts of their lives.

On specific issues, I think the greatest challenges are 1) changing how we grow food so the agricultural economy does not pollute our water 2) restoring the vital water infrastructure that is the basis of people’s health and the Great Lakes regional economy and 3) preventing the continued influx of invasive species that threaten to torpedo our way of life. Solving these challenges depends on a broad and engaged public that is motivated to action to protect the Great Lakes.  

  1. What do you enjoy most about your work at the Alliance for the Great Lakes?

The people I work with, the ability to protect something that is personally important to me and the fact that clean water for all people and wildlife is a hard cause to argue against.

  1. What do you find to be the most challenging aspect of your work?

Environmental advocacy works on big problems with many deeply embedded interests and motivations. Changing that system takes time and can be frustrating. The flip side of that is when you are successful, you are changing a system in a lasting way and you know it will benefit people now and well into the future.

  1. What or who helped you succeed as a policy maker and advocate?

I’m not the kind of person who needs or wants to be in the spotlight taking credit, I just want to work smart and get the result I’m looking for. I’ve relied on so many people because this work is by nature collaborative and I would miss many if I named names. But I will mention one. Cameron Davis, who is now a commissioner at Chicago’s Metropolitan Water Reclamation District, gave me my first real shot at being an environmental professional. I’m sure I screwed up plenty while working for him, but he still let me follow him around and listen to him for years. This was fundamental to me learning how environmental policy change happens. I’m truly thankful for that time. I’ve had five Board of Directors chairs in my time leading the Alliance, without whom I never would have been able to figure out how to run an organization. School does not train you for that and board leadership is vital. The Alliance is fortunate to have a large and diverse base of financial supporters, and I reflect constantly on my obligation to them to make sure our work is addressing their desire for clean and safe water.

  1. Describe those projects as an environmental policy advocate of which you are the proudest.

I’ve done some transformative work in invasive species prevention where I can look back at policies and decisions by elected officials and know that I was one of the people at the center of making those things happen. If you get to be part of one thing like that in a lifetime, it’s pretty great. I’ve been a core part of, though definitely not the leader, of a successful movement to make the Great Lakes a national priority in the United States. I’m also quite proud of dramatically expanding the reach of my organization and becoming a leader in engaging people in advocacy, as public support is critical for success.

  1. What advice would you give a young person today who is considering starting out in your field?

Looking back, I realize today that I received a  privileged opportunity when I joined the Lake Michigan Federation. It was a relatively small group rebounding from a tough time in the right way, and I was fortunate to get that job. Today, the green & blue movement is pervasive in our economy and culture in a way that just did not exist twenty years ago. Young professionals can and should seek out careers with environmental organizations, but also remember that there are opportunities to shape systems change throughout the private sector. They should ask their future bosses to communicate their personal vision for change. Look for somewhere in your work where you can take the lead on at least one thing that is important to you and your career. Listen to understand how environmental choices affect the daily lives of people and build your work around that knowledge. And consider spending some time in politics early on – understanding what motivates our decision makers is absolutely critical to devising strategies to make sure the right decisions are made.

Mr. Brammeier was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

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

PEOPLE: Gabrielle Sigel

April 12, 2019 Trends in Climate Change Litigation: Part 2—Investigations & Litigation by State Attorneys General

Matthew G. Lawson

Del

By Matthew G. Lawson

 

In the second installation of Jenner & Block’s Corporate Environmental Lawyer's discussion of emerging trends in Climate Change Litigation, we are highlighting recent investigations brought by US state attorneys general against private companies for allegedly misleading the public and/or company shareholders regarding the potential climate impacts of their operations. 

In recent years, several major state investigations were launched following investigative journalism reports of private companies’ failures to disclose the causes and effects of climate change. One such example is the Los Angeles Times 2015 exposé into Exxon Mobil Corp.’s historic in-house research on climate change.

Approximately one month after the publication of the Los Angeles Times’ article, the New York Attorney General subpoenaed Exxon, seeking documents related to the company’s research on the causes and effects of climate change; the integration of its research findings into business decisions; and the company's disclosures of this information to shareholders and the Securities and Exchange Commission. The attorney general’s investigation was grounded in New York's shareholder-protection statute, the Martin Act, as well as New York’s consumer protection and general business laws.

In 2016, New York’s investigation was publically supported by a coalition of top state enforcement officials from Vermont, Virginia, Massachusetts, Maryland, Connecticut, and the Virgin Islands, all of which agreed to share information and strategies in similar climate change investigations and future litigation. Exxon responded by filing its own lawsuit seeking to block New York and Massachusetts’ investigations.

After a three-year contentious investigation, the New York Attorney General's office sued Exxon on October 24, 2018, alleging that Exxon engaged in “a longstanding fraudulent scheme” to deceive investors by providing false and misleading information about the financial risks the company faced from its contributions to climate change. 

Jenner & Block’s Corporate Environmental Lawyer will continue to update on this matter, as well as other important climate change litigation cases, as they unfold.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Matthew G. Lawson

April 11, 2019 Jenner & Block's Insurance Coverage for Environmental Claims Webinar

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Jenner & Block Logo 

By Steven M. Siros

On Tuesday, April 16th, from 12:00 - 1:00 pm CST, Jenner & Block is hosting an interactive webinar that will discuss how environmental claims can arise in many different contexts and how high costs can be avoided. One way to manage the cost of environmental claims associated with historical operations is to pursue coverage under historical (and often pre-pollution exclusion) occurrence-based commercial general liability insurance policies. Our panelists will discuss the nuances and pitfalls that can arise in environmental insurance litigation and creative strategies to maximize recovery. In addition, companies facing environmental risks in their current operations or transactions can also manage environmental risk through a variety of current insurance products. Our panelists will identify current options available to manage environmental risks going forward and provide insight into the costs and benefits of those insurance products.

Jenner & Block Partners Allison Torrence and Brian Scarbrough will be panelists, along with Richard Reich, Managing Director at Aon Risk Services Central, Inc. Jenner & Block Associate Alex Bandza will moderate the webinar.

Please click here to RSVP for this webinar.

 

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

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

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

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By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 2, 2019 Trends in Climate Change Litigation: Part 1

Matthew G. Lawson

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

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: Matthew G. Lawson

March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

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By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

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

PEOPLE: Steven R. Englund, Steven M. Siros

February 12, 2019 BACT to the Future: Enviros Petition for Review on Natural Gas Power Plant Air Permit, Saying Batteries Are “BACT” Under the Clean Air Act

Bandza  By Alexander J. Bandza Air pollution

Last week, the Center for Biological Diversity and other environmental groups petitioned the Ninth Circuit for review of EPA Region 9’s decision in December 2018 to issue a final prevention of significant deterioration (PSD) permit for the Palmdale Energy Project (Project), a gas-fired plant being developed in the city of Palmdale, CA. These environmental groups had previously but unsuccessfully challenged the permit in front of EPA’s Environmental Appeals Board (EAB), arguing that a new control technology configuration—namely, replacing the combined-cycle turbines’ duct burners with battery storage—should be used to satisfy EPA Region 9’s “Best Available Control Technology” (BACT) requirements under the Clean Air Act (CAA). The EAB denied the environmental groups’ appeal in October 2018. However, as the EAB explicitly recognized, “energy storage technology is a rapidly growing development in the electrical power supply sector,” and therefore the totality of the environmental groups’ efforts may spur additional consideration of battery storage as an option for facilities to meet their obligations under the CAA.

By way of overview, an entity desiring to construct a “major emitting facility” in a CAA-defined “attainment” or “unclassifiable” area must obtain preconstruction approval, in the form of a PSD permit, to build such a facility. CAA § 165. An applicant for a PSD permit must show that its proposal will achieve emissions limits established by BACT for pollutants emitted from its facility in amounts greater than applicable levels of significance. A BACT analysis is a site-specific, pollutant-specific determination that results in the selection of emissions limits representing application of air pollution control technologies or methods appropriate for the facility in question.

In October 2015, Palmdale filed an application with EPA Region 9 for a PSD permit to construct and operate the Project, a new major stationary source, on fifty acres of land in the City of Palmdale, California. The facility consists of two natural gas-fired combustion turbine generators, each of which is equipped with a natural gas-fired duct burner. Each of the two combustion turbine/duct burner combinations vents heat energy to its own dedicated heat recovery steam generator (HRSG), and steam from both HRSGs is routed to a single steam turbine generator. The duct burners boost the total heat input to the HRSGs, which increases steam output from the HRSGs and concomitantly the amount of electricity the steam generator, and thus the entire facility, produces.

In August 2017, EPA Region 9 issued and invited public comment on a draft PSD permit for the construction and operation of, including the regulation of emissions from, the proposed facility.  The environmental groups identified a new control technology configuration—replacing the combined-cycle turbines’ duct burners with battery storage—that neither the Project applicant nor EPA Region 9 had identified as a potential control technology in the original BACT analysis.  In response to the comments, EPA Region 9 determined that using battery storage to replace duct burners could be rejected as technically infeasible, ineffective, and on the basis of energy, environmental, and economic impacts.  As to the first basis for rejection, EPA Region 9 analyzed the largest battery configuration that the environmental groups had identified in their comments—a Tesla 100 MW lithium-ion battery storage facility for an Australian wind farm.  EPA Region 9 concluded that the duct burners could meet the hours required under the longer peak demand periods, whereas the battery configuration could not.  Thus, EPA Region 9 rejected battery storage could be BACT.

The EAB affirmed, concluding that the environmental groups failed meet their burden of establishing that the Region’s analysis was clearly erroneous or otherwise warrants review.  However, the EAB provided hope for future battery-storage efforts (emphasis added):  “The Board observes that its decision is based on the record in this matter and its decision should not be taken to suggest that the Conservation Groups’ proposal can never be BACT for a particular facility. As the Board noted above, BACT is an emission limit that is based on a ‘case-by-case’ analysis, and the Region recognizes that ‘[e]nergy storage technology is a rapidly growing development in the electrical power supply sector[.]’  Thus, what may not be BACT for purposes of this permit application may be BACT for a future permit application.”  Because the environmental groups’ challenge focuses on EPA Region 9’s approval of this air permit, it is anticipated that many of the same arguments and discussion will occur at the Ninth Circuit.

CATEGORIES: Air, Climate Change, Sustainability

PEOPLE: Alexander J. Bandza

January 29, 2019 What's in Your Baby Powder: NY Proposes Stringent New Disclosure Requirements on Cleaning and Personal Care Products

By Alexander M. Smith Image

Last week, New York Governor Andrew Cuomo announced the Consumer Right to Know Act (“Act”) as part of his proposed executive budget. The Act would authorize the New York Department of Environmental Conservation, along with the New York Department of Health and the New York Department of State, to promulgate regulations requiring product manufacturers to disclose the presence of potentially hazardous substances on their product labeling. Among other things, the Act would require these agencies to assess the feasibility of on-package labeling; develop regulations establishing a labeling requirement for designated products; develop a list of more than 1,000 substances that must be labeled; and identify the types of consumer products that will be subject to these new labeling requirements. The Act would also extend the Department of Environmental Conservation’s disclosure requirements for household cleaning products to encompass all cleaning products sold in New York, and it would empower the Department of Health to require similar disclosures for personal care products like shampoo, deodorant, or baby powder. Needless to say, these disclosure requirements would be among the most stringent—if not the most stringent—in the United States. 

Governor Cuomo’s announcement is available here. We will keep our readers updated on the progress of Governor Cuomo’s proposal. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability

January 3, 2019 How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water

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Drinking water

By Steven M. Siros

In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl  substances (PFAS). However, the Agency for Toxic Substances and Disease Registry  (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016.  The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.

The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized. 

However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.   

ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States. 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven M. Siros

December 12, 2018 The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA

Sigel

 

By Gabrielle Sigel

 

On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S.  The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”).  The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion.  The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration.  80 Fed. Reg. 37054.  Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule.  See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018).  As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.

The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.”  By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.”  The six categories are, in general:

  1. Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
  2. Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
  3. Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
  4. Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
  5. Impoundments – impoundments of otherwise defined WOTUS
  6. Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier

See the exact language of the six categories in the Proposed WOTUS Rule here.

The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.

The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language.  The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches.  In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA.  Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.

Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation.  The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.

The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register.  Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.

 

 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Gabrielle Sigel

November 27, 2018 Matthew Lawson to Present at the Chicago Bar Association on the Environmental Impacts of Blockchain

Allison TorrenceBy Allison A. Torrence

Chicago Bar Association CrestOn Thursday, November 29th, Jenner & Block Associate Matthew Lawson will be giving a CLE presentation on the “Environmental Impact of Blockchain” at the Chicago Bar Association’s Young Lawyers Environmental Law Committee Meeting.  Matthew Lawson’s presentation will discuss both the negative environmental impacts caused by the growth in popularity of cryptocurrency mining, and the potential positive impacts on the environment from emerging and future applications of the Blockchain technology.

The presentation is on November 29, 2018, from 12:15 PM - 1:30 PM at the Chicago Bar Association, 321 S. Plymouth Ct. Chicago, IL 60604.

For more information on the event click here.

CATEGORIES: Climate Change, Greenhouse Gas, Sustainability

PEOPLE: Allison A. Torrence, Matthew G. Lawson

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

November 8, 2018 In Midterm Elections, Colorado Voters Reject High Profile Anti-Fracking Initiative

By Matthew G. Lawson  Fracking

On Tuesday, November 6th, Colorado voters rejected a highly contested ballot initiative which would have set unprecedented limits on oil and gas drilling in the state. The measure, Proposition 112, would have prohibited drilling new oil or natural gas wells within 2,500 feet of certain occupied buildings—including homes, schools and hospitals; various water sources—including lakes, rivers and creeks; and other areas specifically designated as “vulnerable” by the state. In total, a report from the Colorado Oil & Gas Conservation Commission estimated that the measure would have prohibited new hydraulic fracturing operations on as much as 95% of the land in Colorado’s top oil and gas producing counties.   

The proposition received a high degree of pre-election attention, with individuals from politician Bernie Sanders to actor Leonardo DiCaprio encouraging Colorado voters to support the initiative. While early polling indicated Proposition 112 was supported by the majority of Colorado voters, the initiative was ultimately defeated with 57% of the state’s voters opposing it in Tuesday’s elections. In what may have served as a fatal blow, Colorado’s governor-elect, Jared Polis, distanced himself from the ballot initiative in the days leading up to the election. The newly elected Democrat had campaigned as a pro-environment alternative to his Republican opponent, but categorized the ballot initiative as “economically damaging” to the state of Colorado.

At present, New York, Vermont, and Maryland are the only states to have established outright bans on fracking. None of those states, however, has oil and gas reserves approaching the production capacity of Colorado. The state’s oil and gas industry has grown dramatically in the last decade, with the state’s production of crude oil rising from 73,000 barrels per day in 2008 to 477,000 barrels per day in August 2018. As the state’s production of oil and gas continues to grow, it appears likely that legislative battles over fracking regulations will continue to unfold.

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Matthew G. Lawson