On 20 December 2019 the Dutch Supreme Court delivered its judgment in the case of Urgenda against the Dutch State. In 2013, the NGO Urgenda started a civil law procedure against the Dutch State for “knowingly exposing its own citizens to danger” by not taking sufficient measures to prevent climate change and therefore not preventing the foreseeable harm caused by climate change. The Dutch government acknowledged the potentially harmful consequences of climate change, but argued it could not be ordered to act via a court procedure. Continue Reading
As the economy strengthens, development and infrastructure projects continue on an upward trend. Whether the project involves remediating a brownfield site or performing utility work in a public right-of-way, the management of fill material such as soil, rock or stone is often a primary consideration impacting the project’s budget. In the Commonwealth of Pennsylvania, the Pennsylvania Department of Environmental Protection (the DEP or department) generally regulates the management of fill material, however projects involving PCB-containing fill are under the oversight of the U.S. Environmental Protection Agency (EPA). On Nov. 2, the DEP issued a revised management of fill policy (the policy), which makes sweeping changes to the existing policy in effect since Aug. 7, 2010. The policy supplements existing requirements outlined in Pennsylvania’s Solid Waste Management Act municipal and residual waste regulations and provides guidance on the management of clean fill and regulated fill in the commonwealth. See 25 Pa. Code Section 271.1 and § 287.1. Many industries, ranging from developers to soil recycling facilities to soil brokers, must get up to speed by Jan. 1, 2020 when the policy takes effect.
I review the requirements of this policy in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1, 42 Pa. L. Weekly 52 (December 26, 2019), by clicking here.
On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions – designation of PFAS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substances and requirements to promulgate PFAS drinking water standards – were left out of the bill.1 Their absence, and the controversy they engendered, have diverted attention from the many significant PFAS provisions that did make it into the final NDAA package. The NDAA represents Congress’ first major response to public concern about these “forever” chemicals, and the NDAA provisions signal that much more is to come from Congress on the subject of PFAS.
The NDAA PFAS provisions are focused for the most part on the Department of Defense (DOD). They require DOD to stop using PFAS in firefighting foam and other applications, and to cooperate with affected communities and begin cleaning up resources contaminated by military PFAS uses. However, two provisions have much broader application.
This Mexico City GT Alert provides an update to our August 2019 alert, Latin America Renewable Energy: Calls for Public Bids.
The Environmental Protection Agency recently announced a final rule rescinding major amendments to the Clean Air Act §112(r) Risk Management Program (RMP) regulations that were promulgated at the end of the Obama Administration in 2017. The 2017 revisions were promulgated partially in response to a 2013 explosion at a fertilizer company in West Texas, which caused 15 fatalities and injured more than 260 people, and had yet to go fully into effect due to administrative and court challenges and because most of the compliance deadlines had not yet been triggered.
The provisions of the 2017 rule that have been rescinded include requirements:
- To assess theoretically safer technology and alternative analysis of risk management measures targeting process hazards;
- For third-party compliance audits after a reportable RMP accident; and
- To perform root cause analyses after RMP accidents or near misses.
On October 9, 2019, Mexico’s Deputy Ministry of Revenue (Subsecretaría de Ingresos) of the Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público, “SHCP”) published the Official Letter number 349-B-521 (the “Official Letter”) on the Federal Official Gazette (Diario Oficial de la Federación). Pursuant to applicable Mexican regulations, a water concession title may be totally or partially cancelled if the title holder ceases to use or exploit the totality of the water volumes authorized under such concession for a period of two consecutive years.
With such determination, concessionaires and title holders for the use and exploitation of national waters are now aware of the guarantee quotas to avoid the expiration of national water rights when the volume of water granted is not used for two consecutive years.
To read the full GT Alert titled “Mexico’s National Water Law – The Ministry of Finance and Public Credit Authorizes the Payment of Government Fees to Avoid Reduction or Cancellation of Authorized Water Volumes,” click here.
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.
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:
- The majority of the CCR rule remains operational, including the ongoing requirement for groundwater monitoring and public disclosure of data.
- More impoundments will now fall within scope of the obligation to stop use and either retrofit or close the impoundments.
- 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:
- a demonstration of the lack of alternative capacity available on-site or off-site;
- 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;
- 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
- 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.
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.
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.