GT Philadelphia at the PA Environmental Law Forum

Posted in Events, Pennsylvania

Recently, lawyers from Philadelphia’s Environmental Practice Group attended the Pennsylvania Environmental Law Forum in Harrisburg, Pennsylvania. Organized by the Pennsylvania Bar Institute, the annual Forum includes educational presentations by experienced practitioners along with networking events.

Jillian Kirn gave a presentation on cooling water intake structures commonly used by industrial facilities, such as power plants, and the requirements of EPA’s “Phase II” rule issued under § 316(b) of the Clean Water Act, which regulates existing large facilities.  The objective of the § 316(b) regulations is to minimize fish mortality, a common byproduct of water intake.  Under the “Phase II” rule, covered facilities are required to perform studies to analyze their effect on aquatic populations and implement controls which are found to represent the best available technology.  The extent of controls required at an individual facility depends on the facility’s size, the nearby aquatic population, and the cost of implementing various technologies.  Just over one thousand existing facilities are subject to the rule, and the means of compliance are expected to vary based on site-specific factors.

In addition to Kirn’s presentation, Caleb Holmes gave an update on CERCLA litigation.  Holmes’ panel also included an update on the Hazardous Sites Cleanup Program (“HSCA”), Pennsylvania’s state Superfund statute.  David Mandelbaum served on the Forum’s Planning Committee and moderated a round-table discussion on ethics.


Massachusetts Takes Important Step Towards Clean Water Act Permitting Delegation

Posted in Clean Water Act, Massachusetts, Permitting, Regulatory, Water

Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal:  authorization to administer the Clean Water Act NPDES permitting program.  Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority.

A number of the major federal environmental statutes seek to balance nationally consistent federal standards with local control.  Under the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act, this is accomplished by delegation of authority to state agencies to administer regulatory programs promulgated by the United States Environmental Protection Agency (USEPA).  From the regulated community’s perspective, the most important aspect of this “delegated” authority is the issuance and enforcement of permits.

In order to be delegated authority under a particular statute, a state must submit a plan for USEPA approval that details how that agency will provide the legal authority, funding, and staffing needed to carry out the federal regulatory program.  USEPA conducts a public comment process and then determines which (if any) elements of the program the state is qualified to implement.  See 40 C.F.R. Part 123.

However, USEPA retains certain rights, including the right to comment on draft permits, to take additional enforcement actions if it deems the state’s enforcement efforts to be inadequate, and in extreme cases to revoke delegation if it concludes that the state’s permitting, public participation, or enforcement programs are inadequate.  Revocation of delegated authority is not a hypothetical power – for instance, there was a recent effort to revoke Vermont’s delegated authority under the Clean Water Act.

In Massachusetts, the state has been delegated authority under the Clean Air Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act, but not the Clean Water Act.  While the Massachusetts Department of Environmental Protection (MassDEP) is currently a co-signatory on the roughly 3,000 NPDES permits in the Commonwealth (in addition to the stormwater discharge general permits), there has been growing interest to have MassDEP assume authority over the NPDES program.  In particular, the interactions between MassDEP and USEPA over the regulation of stormwater discharges has proven contentious and highlighted the importance of local control over regulatory matters.

In response to legislation filed in 2012, MassDEP prepared a report evaluating the advantages and disadvantages of delegation.  The Baker Administration is now taking the next step by filing legislation confirming MassDEP’s statutory authority to administer the NPDES permitting program.  While this legislation has received strong support from municipalities eager for more creative regulatory approaches, environmental groups have raised concerns about whether delegation could undermine water quality in the Commonwealth.

If the Legislature passes the bill, MassDEP will prepare a plan for public comment and review and approval by USEPA.  That process will take several years, but the Baker Administration will likely seek to complete the delegation process before the end of its first term in 2018.

Glyphosate Litigation Primer

Posted in Litigation, Proposition 65


Plaintiffs’ lawyers in several states are investigating cases of non-Hodgkin lymphoma and other forms of cancer in individuals exposed to the widely used herbicide glyphosate. These investigations follow on the heels of a 2015 report by a working group at the International Agency for Research on Cancer (IARC), which concludes that glyphosate is probably carcinogenic in humans.  At least five product liability lawsuits already have been filed, including one in California where the court recently denied defendant’s motion to dismiss.  Manufacturers, distributors and users of glyphosate likely will see an increasing number of these cases and should be prepared to respond.


Glyphosate is one of the most widely used herbicides in the world, with a broad range of agricultural, commercial and even household applications. On July 29, 2015, an IARC task force published a monograph concluding that there is sufficient scientific evidence of glyphosate’s carcinogenicity in experimental animals and that the herbicide also caused DNA and chromosomal damage in human cells.  Based on its review, the task force concluded that glyphosate probably is a human carcinogen and recommended that the Joint Meeting on Pesticide Residue (JMPR) reevaluate glyphosate, along with two other pesticides.  JMPR is set to reevaluate glyphosate at its next meeting in May 2016.

The Joint Glyphosate Task Force, LLC (JGTF), which has more than 20 corporate members with a glyphosate technical registration in the U.S. or Canada, criticized the IARC report, noting that the monograph contained no new studies or data and pointing out that regulatory agencies around the world have conducted thorough and science-based risk assessments on glyphosate, concluding that it was not a human carcinogen.

In September 2015, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of intent to list glyphosate as a substance known to cause cancer under California’s Prop 65. According to OEHHA, California law requires the listing based on the IARC report.  In early 2016, Monsanto filed a lawsuit against OEHHA seeking to block the proposed listing.

In April 2016, the Alliance for Natural Health published a study finding that 10 out of 24 common breakfast foods contained detectable levels of glyphosate that may result in the consumer ingesting more than EPA believes to be safe. The study concludes by recommending further evaluation by the FDA and EPA.

Existing Litigation

We are aware of five product liability lawsuits that have been filed following the IARC report. Three are pending in Delaware, one is in Hawaii and another in California.  The California case is pending in the Northern District, where a federal judge issued a decision on April 8, 2016 denying the motion to dismiss.  The court’s order rejects preemption arguments that were based on the Federal Insecticide, Fungicide, and Rodenticide Act and the EPA’s approval of glyphosate.  The ruling likely will embolden plaintiffs’ counsel and lead to more cases being filed.  Food producers also could be a litigation target based on recent research finding glyphosate residue on common foods.  At least three class actions already have been filed against a major manufacturer of breakfast cereals, claiming that the product fails to disclose that it contains glyphosate.  In addition, if glyphosate is added to the Prop 65 list, litigation is sure to follow, and many food manufacturers may need to consider adding warnings to products sold in California.

Texas Supreme Court strikes down Houston air quality ordinances

Posted in Air, Texas

On Friday, the Texas Supreme Court struck down Houston’s air quality ordinances, ruling the city had overstepped its authority to police local polluters.  In an 8-1 decision, the justices ruled that local ordinances requiring businesses to pay registration fees and allowing criminal sanctions for emissions violations were inconsistent with state law. The justices wrote in their opinion that if the Texas Commission on Environmental Quality (TCEQ) chose not to take enforcement action against a company, it did not give the city the legal authority to step in.  “By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy — or even no penalty at all — to be the appropriate remedy, the city effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” the opinion states. “This is impermissible.” This decision appears to be another episode in the continuing jurisdictional struggle in Texas over state and local regulation of environmental issues.


New York To Promote Climate Smart Project

Posted in Environment, Green Building, New York, State & Local

This year’s New York State budget offered numerous headline grabbing changes, yet one of the less-heralded portions has the highest potential to reshape the state’s responsiveness to changing climactic conditions.  As part of the state transportation, economic development, and environmental conservation Article VII budget legislation (“TED Bill”), the Legislature passed Title 15 of Part U, creating a new climate change mitigation and adaptation account in the Environmental Protection Fund.  This Title provides a new way for New York State municipalities to receive state assistance funding of up to $2,000,000 for “climate smart community projects” and other projects aimed at increasing resiliency, covering any costs incurred after April 1, 2016.

“Climate smart community projects” are considered projects ranging from the restoration of riparian areas and the construction of long-stalled infrastructure projects to studies assessing the future impacts of rising sea levels.  The projects must demonstrate either: (1) an ability to identify, mitigate, and adapt to climate change vulnerability and risk, or (2) the potential to reduce greenhouse gas emissions outside the power sector.  The Act allows for a more holistic approach, giving the state a tool to support projects that reduce New York’s contribution to climate change and those that help reduce climate-related damage to vital state infrastructure.

Under the terms of the law, the Commissioner of New York’s Department of Environmental Conservation is granted substantial discretion over the contours of the program, delineating how projects qualify for this grant money, setting appropriate standards for climate mitigation projects and determining what level of resiliency is required for future infrastructure projects.  If a municipality is in the process of developing a project that could potentially qualify as a “climate smart community project,” they can submit an application to the commissioner demonstrating the urgency of the project, how it will advance the state’s climate goals, and the methods by which the other costs of the project can be covered. The commissioner can then accept or deny the project, providing funding amounts of up to half of the total project cost or two million dollars (whichever is less).  Moving into the future, the fund will be replenished as part of the annual budget.

Title 15 also creates a separate mechanism for encouraging clean vehicle technology that increases subsidies for both clean vehicle infrastructure and the purchase of municipal fleet vehicles.  The statute requires the DEC to develop, in consultation with the New York State Energy Research Development Agency (NYSERDA), appropriate values for the rebates for both infrastructure (e.g. electric car charging stations) and vehicle replacement purchases.  For vehicles to qualify for the rebate, they must be four wheeled passenger vehicles which, when unmodified, are “propelled at least in part by an electric motor and associated power electronics . . . that draws electricity from a hydrogen fuel cell” or plug-in batteries.  Unlike the grants for the climate resiliency program, which can ostensibly continue indefinitely, the rebates under the clean vehicle program must be made prior to April 1, 2023.

Overall, Title 15 of the TED Bill provides a useful avenue for municipalities to modernize in the face of changing weather conditions; however, the per project funding is relatively modest and how broadly this program will impact future projects depends entirely on the scope and complexity of the rules DEC promulgates to execute the statute.

CERCLA Statutes of Limitations Confusion in Administrative Settlements

Posted in CERCLA

When a private party enters into a CERCLA section 113(f)(B) administrative settlement, it may subsequently pursue the costs incurred under that administrative settlement against other PRPs. However, whether the settling party may bring a section 107 cost recovery claim or a section 113 contribution claim depends on the language of the settlement. A court’s interpretation of whether a party has a cost recovery claim or a contribution claim may be the difference between a proper claim and a time-barred claim. Read more in my Legal Intelligencer/Pennsylvania Law Weekly column here.


FERC’s Near-Term Electricity Menu: Actively Exploring and Tinkering

Posted in Energy

FERC has an active near-term agenda addressing important electrical issues through upcoming technical conferences, Notices of Proposed Rulemaking (NOPR), and Notices of Inquiry (NOI).  We provide below a brief “menu” of these noteworthy conferences, rulemakings, and inquiries that will influence project development, energy pricing, and ancillary services.

Project Development and Access

  • Conference: Review of Generator Interconnection Agreements and Procedures [1]
    • When: May 13, 2016
    • Agenda includes generator interconnection issues, interconnection of energy storage, a petition for rulemaking to revise the pro forma Large Generator Interconnection Procedures and the pro forma Large Generator Interconnection Agreement (LGIA), and other non-enumerated issues.
  • Conference: Reliability of the Bulk-Power System [2]
    • When: June 1, 2016
    • Agenda to be announced.
    • This will be a Commissioner-led conference to discuss policy issues related to the bulk-power system
  • Conference: Competitive Transmission Development Rates [3]
    • When: June 27-28, 2016
    • Agenda includes the use of cost containment provisions, the relationship of competitive transmission development to transmission incentives, incentive ROE, and other rate making issues.

Continue Reading. 

Does FERC’s Denial of Authority to Construct Jordan Cove Signal a More Rigorous Test for Future LNG Projects?

Posted in Energy, Environment, FERC, Oil & Gas

On March 11, 2016, the Federal Energy Regulatory Commission (FERC) denied an application by Jordan Cove Energy Project, L.P. (Jordan Cove) for authority under Section 3 of the Natural Gas Act (NGA) to site, construct, and operate a facility at Coos Bay, Oregon, for the exportation, principally to Asia, of liquefied natural gas (LNG). In that same order, FERC denied a related application by Pacific Connector Gas Pipeline, L.P. (Pacific Connector) for an NGA Section 7 certificate to construct and operate a 232-mile, 36-inch diameter upstream pipeline to supply natural gas to Jordan Cove. As discussed below, the Commission’s denial of a Section 7 certificate for Pacific Connector was a fairly routine application of its Certificate Policy Statement, balancing the benefits of the proposed project against its adverse impacts. Importantly, the denial of the Jordan Cove application extends to Section 3 proposals a similar balancing of benefits and impacts, raising questions as to how the Commission might address future applications for Section 3 authorization to construct LNG facilities that are not supported by contracts for service on the proposed facilities.

The Commission’s Application of the Section 7 Balancing Test

In denying Pacific Connector’s certificate application under Section 7, FERC applied its “Certificate Policy Statement.” Under the Certificate Policy Statement, “the Commission balances the public benefits against the potential adverse consequences.” FERC “will approve an application for a certificate . . . only if the public benefits from a proposed project outweigh any adverse effects.” In this context, FERC indicated it takes a “proportional approach” in balancing “the impact of the proposed project on the relevant interests . . . against the benefits to be gained from the project.” If a project will affect a large number of interests adversely or if it will have a strong adverse effect on a particular interest, a greater showing of need and public benefits will be required for project approval. Continue Reading.

Regulation of Bisphenol A (BPA) Will Soon Affect Consumer Products Distributed in California – Comments on Regulation due April 29, 2016

Posted in California, GT Alert, Proposition 65

Despite positive reviews from the EPA and European Food Safety Authority, Bisphenol A (BPA), a synthetic compound used to line canned goods and other consumer products, was added to the Proposition 65 list on May 11, 2015, as a chemical known to cause reproductive toxicity.  Effective May 11, 2016, private enforcers may bring lawsuits to force warnings on products for exposures to BPA.  No warning is required if a company can show that the exposure is below the regulatory safe harbor, also known as the Maximum Allowable Dose Level (MADL), but this defense is difficult in practice because the law places the burden on defendants to demonstrate de minimis exposure, whereas private enforcers need only show the presence of BPA in a product to bring a lawsuit.

In response to the listing, several industry groups met with the California Office of Environmental Health Hazard Assessment (OEHHA) regarding the potential negative impacts the listing would have on businesses and consumers, especially if the listing was enforced absent the adoption of a safe harbor MADL for BPA.  Brushing aside these concerns, OEHHA will allow enforcement of the listing.

Continue Reading >

The “Other Yates Memo” and USDOJ’s Enforcement of Worker Safety Laws

Posted in Environment

On March 15, John Cruden, the Assistant Attorney General for Environment and Natural Resources, gave an address explaining USDOJ’s approach to enforcement of workplace health and safety laws.  This new approach is set out in a memorandum authored by Deputy Attorney General Sally Yates and issued late last year.  In short, criminal enforcement of workplace health and safety has been added to the Environment and Natural Resources Division and will be for the most part combined with enforcement of environmental laws.  Thus, a workplace injury arising from a chemical spill, for example, might become the subject of criminal enforcement both under the hazardous waste or chemical regulation laws and under the workplace safety laws. 

A copy of Mr. Cruden’s prepared remarks is here

A copy of the “Other Yates Memo” is here

A copy of the Memorandum of Understanding Between DOJ and DOL (executed by Deputy Attorney General Sally Yates and Deputy Secretary of Labor Christopher Lu) is here.