Five Questions Likely to Flow From ‘Water-to-Water’ Cases

Posted in DEP, Water

In two recent decisions, Hawai’i Wildlife Fund v. County of Maui and EQT Production v. Department of Environmental Protection, courts have considered the nuances of “water‐to-water theory” and what constitutes a single discharge. While these cases may seem particularly distinct, one decided in the U.S. Court of Appeals for the Ninth Circuit regarding discharges into the Pacific Ocean under the Clean Water Act and one decided before the Pennsylvania Supreme Court under the Clean Streams Law, both cases add new color to a long and unresolved discourse regarding what constitutes a single release, how penalties are calculated, and what actions or inactions may escalate such a calculation. In the wake of Maui County and EQT, we can expect further debates regarding interpretation and application of both state and federal water law.

Read more from the article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

EPA Issues New Guidance Easing New Source Review Analysis

Posted in EPA

As part of its growing reinterpretation of Clean Air Act requirements, the U.S. Environmental Protection Agency (EPA) has issued a new guidance (Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program (March 13, 2018) (Guidance)) altering the agency’s policy on when preconstruction permits are required under the New Source Review (NSR) program for modifications and construction.

The NSR program requires facilities to obtain a permit before constructing a new major stationary source or undertaking major plant modifications if the changes are predicted to result in a “significant emissions increase.” Facilities that exceed the significance threshold are subject to rigorous operational requirements and are generally required to install costly pollution control devices.

Determining whether a project exceeds the threshold requires a two-step analysis. Prior to last week’s guidance, Step 1 required facility owners to estimate the emissions increases from the proposed project. If the increases met the threshold, then the owners were to undertake Step 2: an evaluation of whether the project would yield a significant net emissions increase, after consideration of other contemporaneous and creditable emissions increases and decreases across the facility.

Under the Guidance, a facility can consider contemporaneous emissions decreases in Step 1 in a process the EPA calls “project emissions accounting.” These decreases need not be enforceable or creditable for consideration in the new Step 1 analysis.

This marks a significant departure from prior practice and raises the possibility that sources may “seek to circumvent NSR by characterizing the proposed project in a way that would separate into multiple projects those activities that, by any reasonable standard, constitute a single project.” Guidance at 9. While admitting this possibility and suggesting that another guidance on project aggregation is forthcoming, the EPA states that it “does not interpret its NSR regulations as directing the agency to preclude a source from reasonably defining its proposed project broadly, to reflect multiple activities.”

While the guidance appears to be in line with the administration’s stated goals, many environmental groups predict that air pollution will increase in its wake.

In an unusual move for an agency where subordinate officers generally issue substantive legal directives like this one, Scott Pruitt, the EPA administrator, issued the Guidance himself – signaling the importance of NSR reform to this administration and potentially raising the stakes for anyone that might seek to change its terms via citizen suit or other means.

Can the Environmental Rights Amendment Protect Pennsylvanians From EPA Cuts?

Posted in EPA, Pennsylvania

President Donald J. Trump and his administration have focused on the EPA during his time in office, particularly in regards to its funding, and its regulations. The president has taken several high-profile steps in addressing climate change, including pulling the United States out of the Paris climate accord and proposing the repeal of the Clean Power Plan. The Trump administration also reversed the decision on the Dakota Access Pipeline, allowing it to move forward.  And last month, the Trump administration released its proposed budget for 2019, which includes significant cuts to EPA’s budget, and makes significant cuts to state grants.

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Greenberg Traurig Hosts Webinar on the Marketing and Disposal of Electronics

Posted in Environment, Events, Waste

Manufacturers, importers, and sellers of electronics are subject to a changing array of federal and state communications and environmental requirements governing the marketing and disposal of such devices. To help clients stay on top of these requirements, GT’s Debra McGuire Mercer and Bernadette Rappold hosted a webinar on March 7 entitled, “Marketing and Disposal of Electronics: Understanding FCC Rules Governing Radiofrequency Devices and e-Waste Regulations.”

Mercer began the session by outlining amended FCC regulations codified at 47 C.F.R. Parts 2 and 15. The amended regulations, which went into effect last November, govern radiofrequency devices, including most electronic goods. The new rules streamline the methods for obtaining FCC equipment authorizations by combining into one method two authorization methods that permit responsible parties to test certain types of devices (rather than have an FCC accredited lab test the devices). The amended rules also eliminate a FCC form that had been required in order to import electronic devices and increased the quantity of devices that can be imported without obtaining an equipment authorization for trade shows or personal use. In addition, the new rules provide guidance as to when required labels may be included on an electronic display, rather than permanently affixed to a device.

Companies re-evaluating their FCC compliance in light of the new Parts 2 and 15 rules may also want to review their compliance e-waste requirements, Rappold suggested. E-waste regulations are becoming increasingly relevant as U.S. consumers, on average, replace their cell phones every 18 months, their televisions every two years, and their computers every three years. While federal regulation of e-waste is limited, 25 states and the District of Columbia presently have requirements either mandating or encouraging recycling of electronic waste. Some states impose a duty on manufacturers to register, while other states place more of the burden on sellers or retailers. Still other states, including California, have declared e-waste “hazardous,” effectively forbidding its placement in ordinary landfills, and have imposed mandatory deposits to encourage end-users to recycle.

As the market for electronic goods continues to grow, continuing regulatory interest in the authorization and disposal of these devices is expected. GT will continue to monitor developments. Subscribe to our blog for updates.

Title Washing: The Case of the Disappearing Mineral Rights

Posted in Articles, Pennsylvania

Earlier this month, the Pennsylvania Supreme Court affirmed on appeal a hunting club’s ownership of a tract of land in its entirety – including both surface and subsurface rights – over the objections of a prior owner’s heirs. In Woodhouse Hunting Club, Inc. v. Hoyt, Case No. 327 MDA 2017, the court weighed in for the second time in recent years on the concept of “title washing,” a creation of early 19th-century property tax law with modern implications.  The question addressed in Woodhouse was whether a tax sale effectuated in 1902 extinguished a prior reservation of subsurface rights and granted the entire property at issue to the purchaser.

Read more from my article in The Legal Intelligencer supplement, Pa Law Weekly, by clicking here.

Environmentalists Score Clean Water Act Victory Which May Affect Permitting Status

Posted in Clean Water Act, EPA, Water

While litigants and the U.S. Environmental Protection Agency (EPA) continue to debate the fate of the agency’s 2015 rule defining jurisdictional waters under the Clean Water Act (Act), environmentalists have scored a victory – one that may cause a widespread re-evaluation of permitting status.

Last week the Ninth U.S. Circuit Court of Appeals upheld a lower court’s grant of summary judgment in favor of environmental groups challenging the County of Maui’s decades-old practice of injecting partially treated wastewater from its wastewater treatment plant into wells. The wells leaked, and the wastewater subsequently migrated through groundwater to the ocean. See Hawai’i Wildlife Fund v. County of Maui, __ F.3d __ (Ninth Cir. 2018).

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EPA Nixes Decades-Old Policy on Toxic Air Pollution

Posted in Air, EPA, Pollution

Jettisoning 23-year old doctrine, the U.S. Environmental Protection Agency (EPA) announced last week in guidance (“Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act,” Memorandum from William L. Wehrum, EPA (January 25, 2018)) that it was abandoning its “once-in-always-in” (OIAI) policy that branded stationary air pollution sources as “major sources” in perpetuity for purposes of compliance with the Clean Air Act’s “maximum available control technology” (MACT) standards.

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Mass SJC Reiterates that Property Damage Liability under Mass. G.L. Chap 21E is Residual to Cleanup Liability

Posted in Court Cases, Hazardous Waste, Massachusetts

Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that private liability for property damage is residual to the claim for a cleanup or cleanup costs. Grand Manor Condominium Ass’n v. City of Lowell, No. SJC-12294 (Ma. Jan. 19, 2018).  That is, a plaintiff can not recover for damage that a cleanup will fix.

Often a cleanup under the Chapter 21E regulations — the Massachusetts Contingency Plan or “MCP,” 310 CMR 40.0000 — results in hazardous constituents remaining in soil or groundwater at a site. Containment — from a sophisticated landfill cap to pavement — can be used to cut off exposure and therefore to achieve an acceptable risk. But that condition may diminish the value of the property, even though the property is “cleaned up.”  Section 5(a)(iii) allows claims for that diminution and similar kinds of situations.

Grand Manor decides that the three year limitations period for a section 5(a)(iii) claim begins to run only when the plaintiff learns that the damage is permanent and not going to be remedied by the cleanup. In that case, waste deposited in an old quarry by the City of Lowell allegedly impaired the value of the condominiums built over it. The plaintiffs knew of the problem for years before the City’s MCP reports made clear that a complete cleanup would be infeasible. Only then did their three years begin to run.

Notice that while this holding reinforces the defendant-friendly rule on the measure of damages, it grants a rather extended time to sue.

Environmental Cases in the Pennsylvania Appellate Courts During 2017

Posted in Articles, Court Cases, Pennsylvania

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize.

Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.

EPA Concludes Glyphosate is Not Likely to be Carcinogenic to Humans

Posted in Chemicals, EPA, Federal, Glyphosate

EPA concluded in draft risk assessments that a widely used herbicide in the United States that controls weeds and grasses— glyphosate—is “not likely to be carcinogenic to humans.”  Importantly, the assessment also “found no other meaningful risks to human health when the product is used according to the pesticide label.”  According to EPA, this finding is consistent with the 2017 National Institute of Health Agricultural Health Survey as well as conclusions by science reviews in other countries.

Use of glyphosate dates back to the 1970s and glyphosate is undergoing Registration Review—which requires EPA review of registered pesticides every 15 years.  The herbicide has been classified in multiple chemical categories since 1985.  Initially classified as a Group C Chemical (Possible Human Carcinogen) due to the discovery of kidney tumors in male mice, the agency reclassified the herbicide in 1986 as a Group D Chemical (Not Classifiable as to Human Carcinogenicity) due to equivocal data.  After additional peer review, in 1991, the agency classified glyphosate as a Group E Chemical (Evidence of Non-Carcinogenicity for Humans) based on studies of mice and rats.  In 2015, the Cancer Assessment Review Committee reevaluated prior data and classified glyphosate as “Not Likely to be Carcinogenic to Humans.” 

As discussed previously by this blog (“EPA: Research Shows Herbicide Glyphosate Unlikely to Cause Cancer” and “Glyphosate Litigation Primer”), there has been significant national and international debate surrounding the use of the herbicide.  The International Agency for Research on Cancer, a subdivision of the World Health Organization (“WHO”), identified glyphosate as a probable carcinogen in March 2015.  But, in November of that year, the European Food and Safety Authority concluded the herbicide was “unlikely to pose a carcinogenic hazard to humans.”  Another subdivision of WHO reached a similar finding in 2016, concluding “glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through the diet.”  While some European countries have sought to ban the herbicide, other countries have stood behind the finding that glyphosate is unlikely to cause cancer in humans.  

In light of this backdrop, EPA characterized its 2017 evaluation as a more comprehensive evaluation compared to its prior 2015 human health review.  While the draft human health assessment finds the herbicide is unlikely to be carcinogenic to humans, EPA stated that the ecological risk assessment showed a “potential for effects on birds, mammals, and terrestrial and aquatic plants.”

The draft risk assessments and supporting documents are available on EPA’s website.  EPA will receive public comments for 60 days following the publication in early 2018 of the draft risk assessments to the glyphosate registration review docket, EPA-HQ-OPP-2009-0361.  EPA states that the agency will publish in 2019 the proposed interim registration review decision for glyphosate.  If deemed necessary, that decision would identify any proposed mitigation measures to reduce risk. 

 

 

 

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