UN Releases Negotiating Text for December 2015 Paris Climate Agreement Meeting

Posted in Climate Change, International

On March 19, 2015, the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC) released negotiating text for a new climate change agreement that will be considered for adoption at the December 2015 meeting of the UNFCCC in Paris.

The negotiating text provides alternative language, addressing issues such as mitigation, adaptation, finance, and technology, which could be incorporated into the text of the final Paris agreement. (See the full negotiating text here.) The text proposed on March 19 will be further negotiated at the next UN climate change meeting to be held in Bonn from June 1 to 11, 2015. The goal of the agreement to be adopted at the Paris meeting is to commit all Parties to the Convention to actions that will prevent global temperatures from rising 2 degrees Celsius and that will assist societies in adapting to existing and future climate change. Per various options outlined in the negotiating text, this could require achieving reductions of greenhouse gases ranging from 40 to 70 percent below 2010 levels by 2050. The commitments expected from various Parties will vary depending upon their “national circumstances,” with developed countries likely taking a greater leadership role in actions to be implemented.

This global effort to reduce greenhouse gases is one of the factors driving the U.S. EPA to regulate CO2 emissions from power plants.   For example, under section 111(d) of the federal Clean Air Act, the U.S. EPA has proposed reducing CO2 emissions from existing power plants by 30 percent from 2005 levels by the year 2030. As part of its justification for the reductions, EPA has stated that it will keep the United States at the forefront of a global movement to produce and consume energy in a more sustainable way.

In releasing the UN negotiating text, Christiana Figueres, the UNFCCC Executive Secretary said that the December meeting in Paris needs to put the world “on a recognizable track to peak global emissions as soon as possible, achieve a deep de-carbonization of the global economy and reach a climate neutral world in the second half of this century at the latest.”

Federal Court Holds Land Deposition of Air Emissions Can Constitute “Disposal” of “Solid Waste”

Posted in Air, Court Cases, RCRA

A federal district court ruled on March 10 that citizens may bring a RCRA imminent and substantial endangerment case based on the ground deposition of material emitted from a facility’s smoke stacks.  The Little Hocking Water Assoc., Inc. v. E.I. du Pont Nemours & Co., 2015 BL 64422, S.D. Ohio, No. 09-cv-1081, 3/10/15.  Explicitly rejecting Ctr. for Cmty. Action & Envtl. Justice v. BNSF R. Co., 764 F.3d 1019 (9th Cir. 2014), in which the 9th Cir. refused to recognize a similar claim regarding particulate emissions from locomotives, the court held that the deposition on the ground of air emissions could constitute the “disposal” of “solid waste” under RCRA’s imminent and substantial endangerment provisions.

Cases such as these, as well as those holding that common law tort claims regarding air emissions are not preempted by the Clean Air Act (see, e.g., Bell v. Cheswick Generating Station, 734 F.3d 188 (3rd Cir. 2013), cert. denied sub nom. GenOn Power Midwest v. Bell, 134 S.Ct. (2014); Freeman v. Grain Processing Corp., 848 N.W.2d 58 (Iowa 2014), cert. denied, (U.S. Dec. 1, 2014)), could encourage more aggressive litigation based on allegations of harm associated with the land deposition of particles emitted into the air.

The court also held that the seepage of contaminants from non-point sources might also constitute the disposal of solid waste (after having concluded that discharges through an NPDES permitted outfall did not trigger RCRA imminent and substantial endangerment jurisdiction, even if the permit did not explicitly identify the material at issue).

Environmental Appeals Board Issues Major TSCA 8(e) Decision

Posted in EPA, TSCA

On March 13, EPA’s Environmental Appeals Board’s issued its long-awaited decision in the Elementis TSCA 8(e) case, reversing the ALJ’s decision imposing a multi-million dollar penalty on Elementis.  In Re Elementis Chromium, Inc., TSCA Appeal No. 13-03 (March 13, 2015).

Section 8(e) of TSCA requires the “immediate” reporting of information which “reasonably supports the conclusion” that a chemical “presents a substantial risk of injury to health or the environment.”  In this case, an EPA ALJ levied a $2,571,800 penalty against Elementis, alleging that an epidemiological study regarding hexavalent chromium completed in 2002 should have been reported to EPA under TSCA 8(e).

In perhaps the first reported decision that addresses the contours of TSCA 8(e) liability at such length, the EAB rejected Elementis’ statute of limitations and statutory interpretation arguments, but found that the disputed study was not reportable based on EPA guidance providing that information is not reportable when EPA is “adequately informed” of the information.   The key points are:

  • The EAB rejected Elementis’ statute of limitations argument, holding that the failure to submit TSCA 8(e) reports is a “continuing violation” and that the statute of limitations clock only begins to run when the disputed report is finally submitted.
    • In so doing, the EAB distinguished its own prior holdings that the failure to create annual PCB reports was not a continuing violation, and the Supreme Court’s recent decision regarding the applicability of the “discovery rule” to SEC fraud cases.  Gabelli v. Sec. & Exch. Comm’n, 586 U.S. __, 133 S. Ct. 1216, 1221 (2013)
  • The EAB rejected Elementis’ argument that TSCA 8(e) only applied to a single conclusory sentence in the disputed study, and not to the underlying data, methodological information, etc.
    • In so doing, the EAB went through a lengthy analysis of what is meant by “information” that “reasonably supports a conclusion” that there is a substantial risk.  The EAB noted that “information” is not limited to conclusions, and includes the underlying evidence, data, methodological information, etc. Such information reasonably support a conclusion if it “verifies, corroborates or substantiates” a substantial risk conclusion.  According to the EAB, the term “reasonable” mandates a “degree of certainty,” and should not be speculative in nature.  Commenting on the types of studies at issue in the case, the EAB observed that it can reasonably support a substantial risk conclusion if it is consistent with scientific principles for conducting such studies, is based on reliable data, and appropriate analytical and statistical tools are used to analyze the data.  One cautions against taking the “degree of certainty” language too far, given that TSCA 8(e) requires the reporting of information that “reasonably supports” a conclusion, not just information that “demonstrates” or “proves” a conclusion.
  • EAB nonetheless concluded that the study was not reportable because, pursuant to long-standing EPA guidance, the report corroborated a “well-established adverse effect” and therefore EPA was already “adequately informed.”
    • The EAB relied on EPA guidance stating that information was not corrobative when it newly identifies a serious toxic effect at a lower dose or confirms a serious effect that was only previously suspected.  After a long discussion of what constitutes a “well-established adverse effect” and corrobative information, the EAB concluded that the disputed study reported a well-established effect regarding exposure to hexavalent chromium at higher doses than reported in previous studies.  Therefore, though the study was reportable based on the statutory language, it was not when reviewed in the context of EPA guidance.  Importantly, the EAB rejected EPA’s claim that the study was otherwise reportable as new exposure information, noting EPA guidance’s is that new exposure information is reportable only if it is “previously unknown and significant human and/or environmental exposure,” and that reporting on this basis is triggered if the exposure was not only unknown, but “considered unlikely based on previously available data” and was “previously unsuspected.”  The EAB concluded that the epidemiological information in the disputed study did not meet those criteria.

This is probably the most important TSCA 8(e) decision to ever come out of the EAB, and provides a level of detailed analysis never before provided in any TSCA 8(e) decision.   So it bears close study by your TSCA 8(e) reporting team.


Actis Unveils $1.9 Billion Pan-African Renewable Energy Joint Venture

Posted in Energy, Green Building, International, Renewables

On Feb. 17, U.K. private equity firm Actis announced a $1.9 billion joint venture with energy developer Mainstream Renewable Power to build a series of wind and solar projects throughout Africa over the next three years.  Read more on Greenberg Traurig’s new “Doing Business in Africa” blog.


Government Access to Contaminated Sites

Posted in Articles, Court Cases, Pennsylvania

Regulators need access to environmentally contaminated sites.  They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance.  But when the contaminated property is not the source of the release, that means that someone who has been dumped on has to allow an intrusion onto his or her property merely because of having been dumped on.  That has to be true, or else all cleanups would be optional.  Yet, the right of access has limits.

My February column in the Pennsylvania Law Weekly reviews the authorities for access provided in section 104(e) and 104(j) of the federal Comprehensive Environmental Response, Compensation and Liability Act and section 503 of the Pennsylvania Hazardous Sites Cleanup Act.  The Commonwealth Court has had occasion just recently to consider section 503 in Commonwealth v. Spangler, No. 1917 C.D. 2013 (Pa. Commw. Ct. Jan. 23, 2015).

Read When Can the Government Access Contaminated Sites?, 38 Pa. L. Weekly 148 (Feb. 17, 2015), by clicking here.

Obama Administration Announces New Steps to Spur Private Investment in Infrastructure Projects

Posted in Policy

Written by Diane J. BlagmanRobert S. BramsBruce H. Giles-KleinAlais L. M. Griffin, Yosbel A. IbarraJamey L. Tesler 

Last year we brought you an update on the state and local infrastructure funding proposals passed by voters in the November elections.  We now examine President Obama’s “Build America Investment Initiative,” designed to facilitate the use of innovative financing and private capital to help state and local governments deliver needed infrastructure projects. On Jan. 16, 2015, the Obama administration announced additional new steps that it is taking to support the Initiative. This Alert provides an overview of these steps and the ongoing implications for public-private partnerships (P3s).

* Special thanks to Kelsey Berkowitzˇ for her assistance in creating this Alert.  ˇ Not admitted to the practice of law.



New York Clears the Way for Permitting LNG-Refueling Stations

Posted in Energy, New York, Oil & Gas, Permitting

The New York State Department of Environmental Conservation (DEC) announced on January 28, 2015 that it has finalized a new regulatory regime to allow the construction of liquefied natural gas (LNG) refueling stations in all parts of the State except for New York City.  Under the agency’s final Part 570 regulations, the facilities would be allowed to store up to 70,000 gallons of LNG, which DEC believes is sufficient to incentivize the construction of new refueling stations.  As we noted in November 2014  and September 2013,DEC added the 70,000 gallon limit based upon safety concerns raised in response to the agency’s initial set of proposed regulations – which lacked any capacity limitation. DEC anticipates that virtually all of the refueling stations would be used by long-haul tractor trailers to address the growing percentage of the nation’s trucking fleet that is converting to LNG.  As the New York Times reported, manufacturers and retail chains have pressed for transportation of their goods by natural gas vehicles and companies like U.P.S. and FedEx have started exploring the option. Clean Energy Fuels, which boasts a system of over 500 LNG and CNG refueling stations around the country, would appear to be a leading candidate for constructing refueling stations in New York.

Based upon the large volume of comments submitted in opposition to the new regulations, it would not be surprising if these regulations are subject to a court challenge.  Although many of the comments in opposition are focused on the connection between LNG refueling stations and the purported evils associated with natural gas extracted by high volume hydraulic fracturing (HVHF), it is likely that a court would defer to the agency’s appraisal of the environmental impacts associated with the new regulatory regime.  Indeed, DEC pushed back in its Regulatory Impact Statement (RIS) by noting that less than 1 percent of the natural gas used in the State would be devoted to transportation for the foreseeable future; i.e., the regulation would have no impact on HVHF and vice versa.  Moreover, the Governor recently announced that DEC would ban HVHF in New York.  Thus, any environmental impacts related to HVHF would not occur within the State anyway, and New York’s environmental review statute, SEQRA, does not require consideration of out-of-state impacts when promulgating regulations.  On a global perspective, the intent of the regulations is to incentivize long-haul tractor trailers to convert from diesel – one of the dirtiest transportation fuels – to clean burning LNG.  Thus, the agency appropriately concluded that the regulations would be beneficial from an air pollution perspective.  Furthermore, any site-specific environmental impacts would be addressed in the permit proceeding authorized by the regulations.

A likely area of dispute would be whether DEC appropriately interpreted the part of the statute specifying that the “intrastate transportation” of LNG must be along certified routes.  ECL § 23-1713(1).  The statute requires the New York State Department of Transportation to establish those intrastate routes pursuant to certain specified criteria, including “the capability of municipal fire departments” to address LNG explosions.  Id. § 23-1713(2).  It is this language – added in 1976 – that has prevented the two agencies from adopting regulations based upon the belief that some municipalities would object to being included along a certified intrastate transportation route, and thus would not cooperate in certifying that its fire departments were capable of addressing LNG explosions.  Indeed, this language highlights how out-of-date the statute is, given the number of far-more dangerous chemicals that are legally and safely transported over state roads every day.

To address this requirement, DEC has interpreted the term “intrastate transportation” narrowly to include only transportation of LNG that is initiated in the State.  In other words, if the transportation is initiated in another state, it would considered “interstate” (rather than “intrastate”) transportation, and thus not be covered under ECL § 23-1713(1).  Based upon this interpretation, Part 570 simply prohibits the intrastate transportation of LNG.  Thus, the route associated with any LNG delivered by truck to a LNG refueling station located in New York would have to be initiated out-of-state.  DEC explained in the RIS that its interpretation in this respect “dovetails” with the significant federal involvement in this area.  For example, DEC notes that the federal Pipeline and Hazardous Materials Safety Administration (part of USDOT) and the U.S. Coast Guard have authority over safety standards for LNG storage and transportation in interstate commerce.  Thus, without saying explicitly, the agency appears to be concerned that requiring trucks in “interstate” commerce to use specific in-state routes would either be preempted by federal law or violate the Commerce Clause under Article I to the United States Constitution.  DEC thus prudently interpreted the statute in a manner that assures the regulations are constitutional by omitting interstate transportation from its scope.

The effective date of DEC’s final Part 570 regulations is February 26, 2015.  DEC’s final rulemaking documents can be found here: http://www.dec.ny.gov/regulations/93069.html .



Anti-Fracking Resolution by Miami-Dade County

Posted in Florida, Hydrofracking

In the last six weeks we’ve provided analysis of the fracking bans in New York and Denton, Texas. Further on the anti- fracking front,  the Miami-Dade County Commission passed a resolution last week urging the Florida Legislature to adopt Senate Bill 166 (filed by Sen. Soto and Sen. Bullard) or similar legislation that would prohibit hydraulic fracturing (also known as “fracking”) and to take measures to safeguard  the water supply and environment through better regulation of oil drilling methods and extraction techniques.   Dr. Hal  Wanless of the University of Miami testified in support of the anti-fracking resolution, noting that Florida’s highly permeable limestone geology renders its drinking water supply vulnerable to contamination from fracking activities.

The Debate Over Florida’s First Commercial Waste-to-Energy Incinerator in 2 Decades

Posted in Biofuels, Energy, Florida

Palm Beach County will soon commence operations of the nation’s first commercial waste-to-energy trash incinerator in 20 years.  The $670 million incinerator, located immediately north of the Solid Waste Authority’s existing facility on Jog Road, will combust approximately 3,000 tons of material per day.  The source of fuel will be tires, wood, automobile remnants, and residential garbage.   According to the Authority’s website, the new facility will process 1 million tons of municipal solid waste (MSW) per year and generate enough electrical power for 56,000 homes.   

The local opposition to the incinerator and its 80-foot smokestack has largely centered on increased garbage truck traffic on county roads, noise and odor concerns, and the fact that garbage is being accepted from outside the County for at least 8 years, which the opponents say will hurt the county’s tourism industry.  Environmental advocates raised concerns over the facility’s toxic air emissions and unknown future impacts, and oppose the importation of trash as “contrary to the county’s efforts to reduce greenhouse gas emissions.”  Instead, the Sierra Club advocated for the use of alternative energy sources such as solar power and pointed to the need to reduce the volume of trash generated through composting and recycling.

The County’s Solid Waste Authority rebuts these arguments by emphasizing that the waste-to-energy plant is a better alternative for waste disposal than the original idea of siting a new landfill near the Everglades and that the importation of trash for a  limited duration and a 19 million tipping fee offsets the cost of the building the plant.  Supporters also point to the fact that recycling rates have largely flattened, with Palm Beach County’s rate of about 30% slightly under the EPA reported national rate of 34%, and that the U.S. Environmental Protection Agency considers a waste-to-energy facility to be a “clean, reliable source of energy, that would “improve[e] air quality by reducing consumption of fossil fuels.   Further, the Authority counters that the new waste-to-energy facility will reduce the amount of waste currently being deposited in a landfill by 85%, thereby postponing the need for new landfill capacity, and the emissions permit limits will be the lowest of any renewable facility combusting MSW in the United States.

Some in the solid waste disposal industry view the debate over the Palm Beach County facility as “an acknowledgment of defeat in the effort to reduce output and step up recycling.”  As local governments like Palm Beach County look for cheaper, simpler alternatives for waste disposal, they are led to a re-examination of the feasibility of incineration and landfills, options whose environmental impacts were once viewed as too controversial.