October 18, 2010 EPA Issues RE-Powering America’s Land Initiative Plan

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA recently released a draft plan that describes the actions the Agency will undertake to progress the 2008 initiative aimed at preserving green space. EPA's RE-Powering America's Land: Siting Renewable Energy on Potentially Contaminated Land and Mining Sites takes a multi-pronged approach to site cleanup and development of renewable energy production facilities on contaminated lands. The Agency launched this initiative to determine the feasibility of renewable energy production on Superfund, brownfields and former mining sites as opposed to green space.

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

October 14, 2010 Steven Siros To Speak on Climate Change Litigation at DRI Annual Meeting

Siros_Steven_COLORBy Steven M. Siros


Steven Siros will be speaking at DRI's Annual Meeting on October 21st in San Diego, California on recent developments in the area of climate change nuisance litigation. The Supreme Court is being asked to review recent climate change nuisance decisions from the Second and Fifth Circuits and another significant nuisance case is currently on appeal in the Ninth Circuit. The viability of these common law nuisance claims is an issue that will need to be resolved by the Supreme Court and when this occurs, it will have obvious implications for GHG emitting sources.  Mr. Siros' presentation will provide an update on the current status of climate change litigation in the United States and assess what lies ahead, especially in light of recent U.S. EPA initiatives to regulate GHG emissions. For more information, please click here.

CATEGORIES: Cercla, Climate Change, Greenhouse Gas

PEOPLE: Steven M. Siros

October 7, 2010 Aerospace And Refinery Air Toxics Data Requested

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA recently sent information requests to 1,000 aerospace manufacturers and 152 petroleum refineries seeking toxic air emissions data. See 75 Fed. Reg. 59,710; 75 Fed. Reg. 60,107  (September 28-29, 2010). The purpose of these information requests is to determine whether future controls are needed to limit hazardous emissions. EPA must either promulgate additional standards against any residual risk or make an official determination that no further controls are necessary.

CATEGORIES: Air, Hazmat, Toxic Tort

October 6, 2010 U.S. EPA to Regulate Perchlorate Under the Safe Drinking Water Act

Siros_Steven_COLOR By Steven M. Siros


U.S. EPA has reversed course and elected to regulate perchlorate under the Safe Drinking Water Act ("SDWA"). Reversing a controversial earlier decision not to regulate this chemical, on September 29, 2010, U.S. EPA sent a draft notice to the Office of Management and Budget outlining its decision to regulate perchlorate under the SDWA. This action, which had been broadly opposed by industry and the DoD, is the first step in setting an MCL for perchlorate which is expected to be well below the existing cleanup target of 15 ppb. Perchlorate is an ubiquitous contaminant in groundwater across the country and it is typically associated with rocket fuel and fertilizers. It is especially an issue in California where numerous drinking water supplies have been contaminated with perchlorate.


October 5, 2010 Fifth Circuit Limits Scope of CERCLA's "Arranger" Liability

By James A. Vroman

In Celanese Corporation v. Martin K. Eby Construction Company Inc., the Fifth Circuit Court of Appeals addressed the scope of "arranger" liability under CERCLA and affirmed the ruling of the district court that Defendant-Appellee Martin K. Eby Construction Company, Inc. was not liable as an "arranger" under CERCLA for the remediation costs Celanese Corporation had incurred.  In 1979, Eby Construction was installing an underground water pipeline for the Coastal Water Authority of Texas.  A backhoe operator for Eby Construction, while excavating in an area that contained a Celanese pipeline that transported methanol, unknowingly struck and damaged the Celanese pipeline.  Over the years, the damaged pipeline deteriorated and began to leak methanol.  In 2001, Celanese discovered the leak and over the next seven years removed and disposed of over 230,000 gallons of methanol.

CATEGORIES: Cercla, Hazmat

October 3, 2010 EPA Seeks Public Comments On The Waste Classification Of Coal Ash

Grayson_Lynn_COLORBy E. Lynn Grayson


Earlier this summer, EPA proposed to regulate coal ash for the first time to address the risks from the disposal of such wastes generated by electric utilities and independent power producers. 75 Fed. Reg. 35127 (June 21, 2010). Coal ash currently is exempt under RCRA but there are growing concerns about the environmental impacts of coal ash in landfills and surface impoundments following the December 2008 coal ash spill from the TVA's plant in Kingston, TN that flooded over 300 acres with coal combustion residuals.

CATEGORIES: Cercla, Climate Change, Hazmat, RCRA

September 24, 2010 New Focus On Environmental Justice

Grayson_Lynn_COLORBy E. Lynn Grayson


The Interagency Working Group on Environmental Justice met this week at the White House renewing the federal government's commitment to equal environmental protection for all. The group plans to review and update its strategies for addressing disproportionate environmental impacts on poor, minority or tribal communities consistent with Executive Order 12898 "Federal Actions to Address Environmental Justice in Minority Populations and Low–Income Populations." The Executive Order, issued in 1994, mandates that each agency make environmental justice part of its mission.

September 24, 2010 CBA-YLS Environmental Law Committee Meeting Features Robert Kaplan, Regional Counsel, U.S. EPA Region 5

Torrence_Allison_COLORBy Allison A. Torrence


The Chicago Bar Association Young Lawyers Section Environmental Law Committee held its first meeting of the bar season on Thursday, September 23rd. The meeting featured a presentation from Robert Kaplan, Regional Counsel, U.S. EPA Region 5.

Mr. Kaplan spoke about the role of the Office of Regional Counsel in U.S. EPA's environmental enforcement. Mr. Kaplan described U.S. EPA's national enforcement initiatives for fiscal years 2011 – 2013, which include:


PEOPLE: Allison A. Torrence

September 16, 2010 The U.S. EPA's Review of the Draft 2002 Subsurface Vapor Intrusion Guidance

By James A. Vroman

On August 30, 2010, the U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") published its "Review of the Draft 2002 Subsurface Vapor Intrusion Guidance."  OSWER's Review of the Draft 2002 Guidance suggests that when OSWER finalizes the Draft 2002 Guidance, which it has promised will be done by November of 2012, the final version of the Guidance will present a more rigorous and comprehensive, and, thus, a more expensive, Soil Vapor Intrusion ("SVI") assessment process than the one presented in the Draft 2002 Guidance.  For example, the Review advised that the EPA plans to include in the final version of the SVI Guidance, in addition to the list of chemicals that will trigger a SVI assessment, "chemical-specific characteristics" that will be used to identify chemicals of concern that may generate vapors.  The EPA will also update the toxicity values of a number of the chemicals listed in Table 1 of the Draft 2002 Guidance.  In addition to these changes to the Draft Guidance, OSWER noted that the SVI assessment process that will be presented in the final version of the SVI Guidance will recommend that the assessment evaluate multiple lines of evidence rather than a single line of external evidence such as soil-gas samples or externally collected groundwater samples.  Consistent with this recommendation, the Review also noted that the final version of the Guidance will provide that the SVI assessment should expand its evaluation of SVI risks beyond single-family residential buildings to include other types of buildings such as non-residential and mixed-use buildings. 


September 16, 2010 EPA Seeks Data About Hydraulic Fracturing

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA plans to study the potential health concerns associated with the use of hydraulic fracturing to free up natural gas deposits. EPA has sent an information request to the nine leading hydraulic fracturing service providers seeking more detail about their business practices, including the names of the chemicals they use.

The information will be used to finalize a congressionally mandated study of the impact of hydraulic fracturing on drinking water supplies. While the information request is voluntary, EPA has asked the companies to advise the Agency within seven days on whether they intend to cooperate. If so, the response to the information request issued September 9th is due within 30 days of its receipt. 

There are growing health-related concerns over the increased use of hydraulic fracturing – a technique employed by the oil and gas extraction companies to fracture underground rock formations and free up natural gas deposits. In such a process, various materials and hazardous substances are injected under high pressure to improve access to the natural gas deposits. There is evidence that such activities may contaminate drinking wells and other water supplies.

EPA expects to provide preliminary study findings in late 2012. The Agency's information request and additional information about hydraulic fracturing is available at http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing.

CATEGORIES: Hazmat, Water

September 11, 2010 Tenth Circuit Overturns Rocky Flats Class Action Property Owner Award

By Katherine Rahill

On September 3, 2010, the Tenth Circuit reversed a lower court's decision to award over $926 million to a class of property owners near the former Rocky Flats Nuclear Weapons Plant, a facility that produced nuclear weapon components, northwest of Denver, Colorado. The class of property owners claims that the former plant's operations released plutonium particles onto their property, thereby contaminating their property, endangering their health and lowering their property values. The Tenth Circuit, however, held that the plaintiffs had not adequately established a sufficient level of injury. The federal appellate court has remanded the case to the District Court with instructions to vacate the judgment and conduct further proceedings consistent with the appellate opinion. While the decision clearly has implications for similar types of claims under the Price-Anderson Act, it also speaks to the levels of injury some courts may require in non-nuclear toxic tort actions where plaintiffs allege property damage or loss of use of their property through trespass and nuisance actions.

CATEGORIES: Cercla, Hazmat, RCRA

September 10, 2010 EPA's Failure To Regulate Lead Ammunition Challenged

Grayson_Lynn_COLORBy E. Lynn Grayson


The American Bird Conservancy (ABC), the Center for Biological Diversity (CBD) and other members of a diverse coalition of conservation, animal health and hunting groups have challenged the recent EPA decision to deny their petition to ban the use of lead as a component of hunting ammunition. Contrary to EPA's position, the groups contend that EPA has the authority to act under TSCA. EPA believes that the Agency does not have the authority due to an exclusion for such products in TSCA Section 3(2)(B)(v).

Following the denial of its petition, CBD has filed a Freedom of Information Act request with EPA seeking copies of all documents related to EPA's decision and also have requested a meeting with Agency management. ABC had decided to take administrative action to challenge the petition denial and also is considering other legal challenges.


September 9, 2010 EPA Selects Five State Capitals For Greening America’s Capitals’ Project

Grayson_Lynn_COLORBy E. Lynn Grayson


On September 8, 2010, EPA announced that the Greening America's Capitals' program would provide sustainable design assistance to: Boston, MA; Jefferson City, MO; Hartford, CT; Charleston, WV; and, Little Rock, AR. Greening America's Capitals is a project of Partnerships for Sustainable Communities between EPA, HUD and DOT to help state capitals develop implementable vision of distinctive, environmentally friendly neighborhoods that incorporate green building and green infrastructure strategies.

The five state capitals were selected from a total of 38 cities that responded to a solicitation of interest by EPA in June 2010. The agency will organize teams of urban planners and landscape architects to provide direct, customized technical assistance as requested by each community.

Greening America's Capitals is not a grant program, but provides direct technical assistance to communities by working with private sector experts and leveraging partnerships, such as with HUD and DOT, to help communities consider development options. In addition to helping the selected state capitals build civic pride and a greener future, this assistance will help create models that other cities can look to in creating their own sustainable designs.

The program will assist three to five communities per year with the first projects beginning in late 2010. More information about the Greening America's Capitals' program is available at http://www.epa.gov/smartgrowth/greencapitals.htm.

CATEGORIES: Climate Change, Greenhouse Gas

September 8, 2010 National Conversation On Public Health And Chemical Exposures

Grayson_Lynn_COLORBy E. Lynn Grayson


The National Conversation on Public Health and Chemical Exposures is a collaborative project between the Centers for Disease Control (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR). The project's goal is to develop an action agenda with clear, achievable recommendations that can help government agencies and other organizations strengthen their efforts to protect the public from harmful chemical exposures.

The project's work is divided into six groups formed to research and make recommendations on cross-cutting public health and chemical exposure issues:

  1. Monitoring
  2. Scientific Understanding
  3. Policies and Practices
  4. Chemical Emergencies
  5. Serving Communities
  6. Education and Communication

Draft work group reports now are available at http://www.resolv.org/nationalconversation/ and comments will be accepted through September 20, 2010.

RESOLVE, a non-profit organization dedicated to advancing effective use of consensus building in public decision making, is collecting all comments. The work groups will consider all comments submitted in finalizing their reports. The National Conversation's Leadership Council will use the work group reports in developing the action agenda scheduled to be available for public review and comments in December, 2010.

CATEGORIES: Air, Cercla, Hazmat, RCRA, Water