Guidance for Voluntary Cleanups and Preserving Potential Contribution Rights

Posted in Articles, CERCLA, Contamination, Pennsylvania

State voluntary cleanup programs have facilitated the cleanup and reuse of contaminated commercial and industrial properties throughout the country. The benefits of cleaning up and reusing contaminated properties are difficult to overstate—these voluntary cleanups promote reuse of existing infrastructure, protect human health, provide economic benefits to the surrounding area and assist in the preservation of undeveloped green spaces. Pennsylvania environmental lawyers frequently advise clients on voluntary cleanups under the land recycling program (Act 2). A party voluntarily cleaning up a property likely should consider at the onset whether the party intends to seek contribution from potentially responsible parties for the cleanup costs. In the U.S. Court of Appeals for the Third Circuit, there is a question whether a party completing a voluntary cleanup must take steps beyond the actions required by the state program in order to seek contribution from potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq (CERCLA).

I examine this issue in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read Guidance for Voluntary Cleanups and Preserving Potential Contribution Rights, 42 Pa. L. Weekly 47 (November 19, 2019), by clicking here.

Is the Clock Ticking on Coal Ash?: Key Deadlines and Takeaways from EPA’s Recent CCR Rule Revisions

Posted in Coal, Coal Ash, Energy, EPA, Waste

On November 4, 2019, the U.S. Environmental Protection Agency (the “EPA”) proposed to amend the 2015 coal combustion residuals (“CCR”) rule. The proposal is part of a multi-step effort by EPA to address CCR, including a second proposal announced on the same day addressing effluent guidelines coal-fired power plants. The EPA has already drawn sharp criticism from environmental advocates and non-governmental organizations who argue that the EPA proposal will permit more pollution and slow corrective action. While the proposal does permit utilities to apply for extensions for continued use of CCR impoundments, those who dismiss the rule as a rollback ignore some key facts:

  1. The majority of the CCR rule remains operational, including the ongoing requirement for groundwater monitoring and public disclosure of data.
  2. More impoundments will now fall within scope of the obligation to stop use and either retrofit or close the impoundments.
  3. Although the EPA proposes both a short-term and longer extension to the deadline, the amendments include specific criteria for what utilities will need to submit to obtain the extension and measures for public transparency for both the basis for extension and progress to reach closure.

In Utility Solid Waste Activities Group et al. v. EPA (Aug. 21, 2018), the D.C. Circuit vacated certain provisions of the 2015 CCR rule and remanded some provisions to the EPA for further consideration. The November 4, 2019 proposal establishes a new deadline of August 31, 2020 for facilities to stop accepting CCR into surface impoundment units and either retrofit them or initiate closure. The current deadline is October 31, 2020. Additionally, the EPA changes the classification for “clay-lined” or compacted soil-lined impoundments from “lined” to “unlined” and specifies that all unlined units must be retrofitted or closed, not just those with groundwater contamination above regulatory levels. The changes reflect the mandates from the D.C. Circuit. Critics of the EPA’s proposal contend the Agency failed to address the exemption for legacy ash sites located at closed power plants, which the D.C. Circuit also found was unlawful.

To address circumstances that the EPA recognizes may preclude compliance with the August 31, 2020 deadline, particularly for impoundments that would not have previously been included under the scope of the rule, the EPA proposes a series of amendments that create essentially two tracks for extension of the August 31, 2020 deadline. The first is a short-term alternative designed to be self-implementing which would grant facilities a three-month extension to the deadline to cease receipt of CCR waste. The second establishes a process and criteria to petition EPA for site-specific approval for longer extensions based on one of two demonstrations. To obtain more than the 30-day self-policing extension of the cease of receipt of waste deadline, the EPA will require four lines of evidence from owner/operators:

  1. a demonstration of the lack of alternative capacity available on-site or off-site;
  2. a demonstration that CCR and non-CCR waste streams must continue to be managed in the CCR surface impoundment due to the technical infeasibility of obtaining alternate capacity prior to November 30, 2020—this demonstration must include an analysis of the adverse impact to plant operations if the CCR surface impoundment in question were to no longer be available for use;
  3. a detailed workplan on obtaining alternate capacity for CCR and/or non-CCR waste streams and a narrative discussion of the steps and process that remain necessary to complete development of alternate capacity for the waste stream(s); and
  4. a narrative on how the owner or operator will continue to maintain compliance with all other aspects of the CCR rule.

The proposed amendments include specific data requirements for extension petitions, set out parameters for granting the extension, set deadlines to submit the applications, and require semi-annual progress reports to be made publicly available. Increased cost or inconvenience will not be sufficient bases to extend the deadline. Additionally, the EPA intends to publish decisions for public comment before issuing final orders to grant extensions.

The key deadlines in the proposal are summarized below:

Proposed Compliance Deadline for CCR Surface Impoundments Deadline Date
New cease of waste deadline for unlined and formerly clay-lined surface impoundments August 31, 2020
New cease of waste deadline for surface impoundments that failed the minimum depth to aquifer location standard August 31, 2020
New short-term alternative to initiation of closure (up to 3-month extension to cease of receipt of waste deadline) No later than November 30, 2020
New site-specific alternative to initiation of closure due to lack of capacity No later than October 15, 2023
New site-specific alternative to initiation of closure due to permanent cessation of coal-fired boiler(s) by a date certain for surface impoundments 40 acres or smaller No later than October 17, 2023
New site-specific alternative to initiation of closure due to permanent cessation of coal-fired boiler(s) by a date certain for surface impoundments larger than 40 acres No later than October 17, 2028

Owners and operators of impoundments that contain CCR waste should promptly determine whether the proposed amendments will trigger any compliance concerns and begin the process now to prepare the necessary evidence to apply for any extensions. All stakeholders will have the opportunity to comment and to participate in a virtual public meeting on the proposal in early January. Regardless of the outcome of the final revisions to the cease of receipt of waste deadline and any permitted extensions, owners and operators of CCR impoundments have ongoing compliance obligations and potential for liability.

It is also important to remember that failure to comply with the CCR regulations is not the sole source of risk. Separate from the CCR rules, contamination from CCR disposal units can trigger Federal or State cleanup requirements. In addition, neighbors, public interest groups, and other stakeholders may respond to alleged contamination from CCR units with litigation under citizen suit or other statutory provisions or traditional common law claims such as nuisance or trespass. Thus, successfully managing CCR risk may require a more holistic strategy than one that focuses solely on regulatory compliance.

LNG Export: DOE Authorizes a New Business Model Under Its Small-Scale Export Rule

Posted in Energy, Export Controls, Oil & Gas, Regulatory

On Nov. 8, 2019, the Office of Fossil Energy (FE) of the Department of Energy (DOE) issued DOE/FE Order Nos. 4461 and 4462 (the Orders) authorizing GT client SpotX Energy, LLC (SpotX) to export domestically produced liquefied natural gas (LNG) under its recently enacted “small-scale natural gas export” rule (the Rule). The Rule amended DOE’s regulations to facilitate small-scale exports up to 51.75 billion cubic feet per year (Bcf/yr). The Rule was intended to promote exports to emerging foreign markets that have not been targeted by larger scale LNG projects due to practical and economic constraints. Provided an application seeks authorization within the volume limits, and is eligible for a categorical exclusion from the requirement to perform an Environmental Impact Statement or Environmental Assessment, the Rule provides that exports will be deemed consistent with the public interest.

Click here to read the full GT Alert.

UK Government Ends Its Support for Fracking in England (At Least for Now)

Posted in Energy, GT Alert, Hydrofracking, Oil & Gas, UK

On 2 November 2019, the UK government announced that it is ending its support for fracking in England. This follows a report from the UK’s Oil and Gas Authority (OGA), an independent subsidiary of the UK’s Department for Business, Energy and Industrial Strategy (BEIS), which found that it is not currently possible to accurately predict the likelihood or magnitude of earthquakes linked to fracking operations.

Click here to read the full Alert titled “UK Government Ends Its Support for Fracking in England (At Least for Now).”

PFAS Solution IN (or OUT) of the NDAA?

Posted in Emerging Contaminants, Federal, Legislation, PFAS

For a refresher on what Per- and polyfluoroalkyl substances (PFAS) are and what Congressional action may mean for stakeholders, see the Greenberg Traurig E2 Law blog from earlier this year.   

As legislative days dwindle, Congress is in a full sprint to pass the National Defense Authorization Act (NDAA) (related blog post), among several other must-pass bills. Controversial issues, such as border wall funding, military actions related to Iran, PFAS, among others, have bedeviled congressional negotiators since the Senate (S. 1790) and House (H.R. 2500) passed their bills in early summer. As Greenberg Traurig reported in July, H.R. 2500 would designate all PFAS (over 5,000 chemicals) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but S. 1790 does not include similar language.

Both bills contain a variety of provisions addressing PFAS pollution, and there is common ground on most of them between the House and Senate packages, and more generally, broad agreement among Republicans and Democrats that legislation is necessary to address PFAS. However, the CERCLA listing is where consensus breaks down.

This difference between the two bills has emerged as a key sticking point for lawmakers. The Pentagon – which has over 400 sites with PFAS contamination – strongly opposes the CERCLA provision in the House bill, as do many other stakeholders. Interestingly, in a September 10 House Oversight Committee hearing, DuPont announced support for listing two PFAS (PFOA and PFOS) as CERCLA hazardous substances, while other companies have consistently pushed for alternatives, such as EPA rulemaking to determine which (if any) PFAS should be listed as hazardous substances. And, on October 22, 67 House Democrats and 1 Republican announced they would vote against any NDAA package that does not include the CERCLA provision.

Signaling pessimism about the prospects for compromise on remaining issues, Senate Armed Services Committee Chairman Jim Inhofe (R-OK) introduced S. 2731 on October 30, which he has described over the past few weeks as a “skinny” NDAA bill, built around must-pass provisions, and omitting controversial items. Adam Smith (D-WA), Chair of the House Armed Services Committee, has expressed doubts about the viability of a stripped-down NDAA in the House. The new bill does not contain PFAS provisions.

The Controversy

The impact of making PFAs hazardous substances would be immediate and dramatic: a CERCLA listing would expose DOD and other public and private entities to Superfund cleanup liability, including private cost recovery litigation. Recent statements of Senator Inhofe and Rep. Smith suggest that PFAS provisions may not make the cut.

What Happens Next?

The PFAS language in NDAA bills – especially the Senate bill – came directly from still-pending PFAS-specific legislation. Attaching PFAS provisions to a different must-pass bill is, at best, a remote possibility for legislative success, because the controversy over CERCLA provisions will remain in any context. Complicating matters is that there are less than 30 days left with both chambers in session before the end of the year, and with an impeachment inquiry dominating much of the Congressional agenda, PFAS could be pushed further down the list of priorities. That said, bipartisan efforts will continue in 2020 if a solution is not reached by the end of this year.

Meanwhile, EPA continues to implement its PFAS Action Plan, including a promised determination by year-end whether to promulgate drinking water standards for PFOA and PFOS, and a rulemaking (under development) identifying PFOA and PFOS (the oldest and most studied PFAS) as CERCLA hazardous substances.

With PFAS on the radar of Congress and EPA, legislation would be one of the most notable environmental accomplishments of the 116th Congress, if lawmakers can settle their differences and get it across the finish line.




Acceleration of the Removal of Diesel (and Bi-Mode) Trains From UK Operation?

Posted in Climate Change, UK, United Kingdom

The removal of diesel trains from operation in the UK could be accelerated as part of the UK government’s plans to reduce carbon emissions.

In a speech in February 2018, the UK’s then-Minister of State for rail, Jo Johnson (brother of UK Prime Minister Boris Johnson), stated that he “would like to see us take all diesel-only trains off the track by 2040”. However, less than two years later in October 2019 (and during a week when attention was focussed on whether Prime Minister Johnson would reach agreement with the European Union on Brexit), Secretary of State for Transport Grant Shapps told the Parliamentary Transport Select Committee that “when I look at my comments on cars where, at the moment, the policy is 2040 to end the sale of petrol and diesel [cars], I recently said that I am going to investigate 2035. I am of course very interested in the earlier extinction of diesel trains”.

Click here for the full GT Alert.

The Revised Brexit Withdrawal Agreement and Political Declaration and Their Impact on UK Environmental Standards

Posted in Brexit, Environment, UK, UK REACH, United Kingdom

An important difference between UK Prime Minister Boris Johnson’s Withdrawal Agreement and former Prime Minister Theresa May’s Withdrawal Agreement is that provisions relating to environmental protections have been removed and are now to be found in the amended Political Declaration. While the Withdrawal Agreement, once ratified, would be a legally binding treaty between the UK and the EU, the Political Declaration would be non-binding, at least under international law. Therefore, under Mr Johnson’s proposal, the provisions relating to environmental standards would not be binding on the UK. There are also substantive differences in the environmental provisions.

Click here to read the full GT Alert.

Consulting With Native American Tribes on Energy and Infrastructure Development: Strategies for Reducing Project Risk

Posted in Compliance, Energy, Environment, GT Alert, Infrastructure, NEPA

“Tribal consultation” refers to the federal government’s legal obligation to consult with Native American tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in.

The project need not be on tribal land for the tribal consultation requirement to apply. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other federal laws, mandate that the lead agency on each project must consult with all affected Indian tribes, on a government-to-government basis. This is true whether the project is on public or private land. The rule of thumb is that if a project needs federal permission to proceed, the federal agency considering it must identify the tribes in the project area and consult with them in a meaningful fashion before making any final decisions.

Click here to read the full GT Alert by Troy Eid, co-chair of Greenberg Traurig’s American Indian Law Practice.

Thumbs Up for Energy Storage: FERC Approves PJM and SPP Proposals Implementing Order No. 841

Posted in Energy, FERC, GT Alert, Regulatory

On Oct. 17, 2019, the Federal Energy Regulatory Commission (FERC) gave PJM Interconnection, L.L.C. and Southwest Power Pool the green light to implement their energy storage proposals to comply with FERC’s Order No. 841. FERC found that these proposals reduce barriers to market participation by storage resources by allowing them to be compensated fairly when delivering various and unique operational capabilities and services. But stay tuned – while these orders are important progress, integration of storage resources into the wholesale market will be complex. Indeed, FERC also ordered PJM and SPP to make compliance filings to include specific rules for minimum run-time requirements in their tariffs.

Click here to read the full GT Alert.

After Flint, EPA’s New Lead Rule Proposal May Not Satisfy Critics

Posted in Clean Water Act, Compliance, Contamination, EPA, Safe Drinking Water Act, Water, Water quality

In the wake of the drinking water crises in Flint, Michigan and elsewhere, the U.S. Environmental Protection Agency (EPA) proposed a rule on Oct. 10, 2019, that would impose new lead requirements on drinking water systems. If finalized, the new rule would mark the first change to the lead and copper rule (LCR) since 1991.

Drinking water systems throughout the country still rely on lead service lines to connect treatment plants to consumers. Water treatment chemicals can cause lead to leach from service lines. In 1991, the EPA adopted a rule under the Safe Drinking Water Act (SDWA), requiring drinking water systems to implement corrosion control measures when the lead level is above the “action level” of 15 parts per billion (ppb). Tap water samples must be collected, and if more than 10 percent of tap water samples exceed the lead action level of 15 ppb, then water systems are required to take actions. This method allows some percentage of the customer taps to exceed the action level, without the water system having to act.

The proposed rule retains the 15-ppb action level, but requires a more comprehensive response. For example, water systems must replace the portion of the lead service line they own whenever a customer replaces her portion of the line. The proposed rule also introduces a trigger level of 10 ppb that requires more proactive planning in communities with lead service lines. In addition, the proposed rule will require development of lead service line inventory and more robust sampling and risk communication.

Curiously, however, the proposal would decrease the annual percentage of lead service lines a water system must replace when its tap water exceeds the 15-ppb action level: the existing rule requires utilities to replace seven percent of their lead service lines annually, while the proposed rule would reduce that percentage to three.

While the EPA argues that the new requirements, along with the 10-ppb trigger, will reduce the levels of lead in drinking water, critics charge that the changes do not go far enough, and that reducing the annual replacement rate is wrong.

The public will have 60 days from the date of the proposed rule’s publication in the Federal Register to submit comments (in Docket No. EPA-HQ-OW-2017-0300).

For more on water quality, click here.