Environment and Sustainability

Pollutant  

On March 19, 2013, the Congressional Research Service ("CRS") issued a revision to its report analyzing two bills introduced in the 112th Congress that would create a state permitting program for coal combustion residuals. The two bills – S. 3512 sponsored by Sen. John Hoeven (R-ND) and H.R. 3409 sponsored by Rep. David McKinley (R-WV) – would amend RCRA Subtitle D to include a new Section 4011, entitled Management a . . .

Stephanie B. Sebor ; May Wall

Several of the 15 transitional coal units under EPA's proposed GHG NSPS for new EGUs have been cancelled in light of the uncertainty created by the intersection of the new source MATS emission limits and the pressure to commence construction by April 13, 2013 to avoid becoming subject to the GHG NSPS. The two rules created a regulatory dilemma under which the transitional units cannot commence construction because . . .

Stephanie B. Sebor ; Jay Holloway

On March 7, 2013, EPA issued a final rule delaying deadlines to install near-road nitrogen dioxide air quality monitors. The near-road monitoring program, included in EPA's 2010 update to then nitrogen dioxide NAAQS, initially required a 126 new nitrogen dioxide  monitors to be installed by January 1, 2013. State and local air officials voiced concern that they would not be able to mee . . .

Charles A. DeVore ; Jay Holloway

On March 20, 2013, the Supreme Court held in Decker v. Northwest Environmental Defense Center that NPDES permits are not required for channeled stormwater runoff from logging roads. The case arose when an environmental group filed suit under the Clean Water Act's citizen suit provision against Georgia-Pacific West, the State of Oregon, and others alleging that they had failed to obtain required NPDES permits bef . . .

Stephanie B. Sebor ; May Wall

Speaking recently at the GreenBiz Forum, the vice chairman of the NASDAQ stock exchange, Meyer Frucher, called for universal sustainability standards for listed companies, and is currently coordinating with various stock exchanges worldwide to promote corporate sustainability reporting. This global initiative, the Sustainable Stock Exchanges initiative, grew out of the UN Conference on Sustainable Development, commonly referred to as Rio+20. Current signatories to the global initiative includ . . .

Charles A. DeVore ; May Wall

In a brief filed February 19, 2013, EPA stated that substantial uncertainties prevented revisions to the nitrogen dioxide and sulfur dioxide secondary NAAQS in 2012. Environmentalists filed suit in the U.S. Court of Appeals for the D.C. Circuit against EPA in late 2012 challenging EPA's decision to retain 1971 NAAQS for nitrogen dioxide  and sulfur dioxide  rather than update the standards (Center for Biolo . . .

Charles A. DeVore ; Jay Holloway

Two recent lawsuits decided by the U.S. Court of Appeals for the D.C. Circuit regarding PM2.5 NAAQS may result in stricter rules regarding PM2.5 NAAQS implementation. On January 4, the D.C. Circuit vacated EPA's PM2.5 NAAQS implementation rules, finding that the rules must comply with the strict requirements of Clean Air Act Title 1, Part D, Subpart 4, rather than the more lenient general requirements of Subpart 1. On January 22, the D.C. Circuit invalidated EPA's rules allowing exemptions fr . . .

Charles A. DeVore ; Jay Holloway

EPA is expected to finalize the long-awaited new source MATS reconsideration before the end of the month. The final rule is expected to raise the MATS emission limits for Hg, PM, HCl, SO₂, selenium, and lead applicable to new EGUs. EPA is also expected to finalize changes to the startup and shutdown work practice standards and the utility NSPS provisions in Subpart Da. Developers of new coal-fired utilities have urged EPA to finalize the new source MATS reconsiderati . . .

Stephanie B. Sebor ; Jay Holloway

On February 21, 2013, the Hydraulic Fracturing Regulatory Act, HB 2615 was introduced in the Illinois General Assembly by Democratic Rep. John E. Bradley. The bill was co-sponsored by over 20 representatives, mostly Republicans. The provisions of HB 2615 were . . .

Averil M. Edwards ; May Wall

In a move that has caught the attention of large institutional lenders, the SEC, on February 13, allowed a shareholder resolution on climate change risks filed with PNC Financial to remain on the proxy ballot for the 2013 proxy season. If the resolution, filed by sustainable investment company Boston Common Asset Management, LLC, is passed by a vote of the shareh . . .

Averil M. Edwards ; May Wall

EPA recently published a notice of availability of draft chemical risk assessments of the following five widely-used chemicals in common household products: trichloroethylene (TCE), a chlorinated solvent used for degreasing and as a spray-on protective coating; antimony trioxide (ATO), a synergist in halogenated flame retardants; methylene chloride, a chemical used in paint stripper products; n-methylpyrrolidone (NMP) . . .

Stephanie B. Sebor ; Eleni Kouimelis

On February 14, 2013, Senators Bernie Sanders (I-VT) and Barbara Boxer (D-CA) introduced a new carbon tax bill (S. 332) called the Climate Protection Act of 2013. The bill would give EPA authority to impose a fee of $20.00 per ton of carbon dioxide equivalents on any manufacturer, producer, or importer of a carbon polluting substance. The fee would increase by 5.6% per year over a ten-year period. The bill aims to reduce greenhouse gas emissions to 80% of 2005 levels by January 1, 2050. The C . . .

Stephanie B. Sebor ; May Wall

In a press release dated December 19, 2012, ECHA, the European Chemicals Agency, announced that it had updated the candidate list of substances of very high concern (SVHC) with the addition of 24 new substances. The list now contains a total of 138 substances. This list identifies SVHC which may be included, in the medium or long term, in Annex XIV of the REACH Regulation (list of the substances subject to authorization). ECHA i . . .

Francois Harrouet ; Averil M. Edwards

On February 11, 2013 EPA released its 2012 Chemical Data Reporting ("CDR") on chemical production and use in the United States. The 2012 CDR includes use and exposure data for calendar year 2011 collected from manufacturers and importers for more than 7,600 widely-used chemicals on the TSCA Chemical Substance Inventory. The CDR provides information on chemicals contained in consumer products, children's products such as toys and s . . .

Stephanie B. Sebor ; Eleni Kouimelis

On February 5, 2013, EPA released 2011 greenhouse gas (GHG) emission data on its web-based Facility Level Information on Greenhouse Gases Tool ("FLIGHT"). The 2011 GHG data is the second year of GHG emission data EPA has collected and made available to the public under the GHG reporting rule, which was finalized in 2009 and requires large emitters of GHGs to annually monitor and report their emissions beginning calendar year 2010. FLIGHT allow . . .

Averil M. Edwards ; Eleni Kouimelis

The U.S. Supreme Court declined to hear a challenge to EPA’s SO2 24-hour NAAQS on January 22, 2013. The U.S. Court of Appeals for the D.C. Circuit ruled in July 2012 that EPA did not exceed its authority when it reduced the 24-hour SO2 standard from 140 parts per billion (“ppb”) to 75 ppb in 2010. Several states and industry groups had argued that EPA had set the new SO2 NAAQS far below the level required to protect public health.

The states and industry also challenged that EPA’s im . . .

Charles A. DeVore ; Jay Holloway

On February 5, 2013, the General Services Administration (GSA) published a request for comment on the Federal government's use of green building rating systems. This subject has generated controversy and lobbying activity at the municipal, state and federal level, given the widespread use and perceived monopoly of the green ratings and certification program of the U.S. Green Building Council's Leadership in Energy and . . .

Charles A. DeVore ; May Wall

Last month EPA's Office of Underground Storage Tanks released a report on its evaluation of subsurface empirical data from petroleum-impacted sites for the purpose of developing a new soil vapor intrusion screening approach for petroleum hydrocarbons. EPA primarily evaluated underground storage tank sites, but also considered data from other sites such as fuel terminals, petroleum refineries, and petrochemical faciliti . . .

May Wall ; Averil M. Edwards

California has become the latest state to propose regulations to address public concerns over hydraulic fracturing activities. The California Department of Conservation's Division of Oil, Gas and Geothermal Resources ("DOGGR") released a discussion draft of hydraulic fracturing regulations on December 18, 2012. The DOGGR . . .

Averil M. Edwards ; May Wall

The reflagging of a U.S.-flag vessel to a foreign registry must take into account the Toxic Substances Control Act (TSCA) of 1976 which generally prohibits the export of polychlorinated biphenyls (PCBs). Prior to being found to be harmful to humans, PCBs were utilized in industrial and commercial applications including in paints, plastics and rubber products installed on vessels. The U.S. Maritime Administration, which generally must approve the reflagging of all U.S.-flag commercia . . .

Charlie Papavizas

On January 24, 2013, the U.S. Court of Appeals for the D.C. Circuit denied EPA's Petition for Rehearing En Banc in EME Homer City Generation, L.P. v. EPA. The court's order stated that a majority of the judges eligible to participate in a vote on EPA's petition voted against rehearing. Judge Judith Rogers, who wrote a vigorous dissent from the majority's opinion in EME Homer City Generation, did not write a dissent from the rehearing denial. Following the D.C. Circu . . .

Stephanie B. Sebor ; Jay Holloway

On January 11, 2013, Winston & Strawn scored a significant win in the U.S. Court of Appeals for the Federal Circuit in Indian Harbor Insurance Company v. United States. The Federal Circuit issued a decision that will result in broad protection from environmental liabilities for any entity that acquires ownership or control of closed former military bases. The Court held that the statutory provis . . .

Charles A. DeVore ; Eleni Kouimelis; Scott A. Schipma

On January 8, 2013, the Supreme Court issued a decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., a citizen suit alleging that a municipal separate storm sewer system (MS4) operator had violated its NPDES permit. At issue in the case was whether the flow of water out of a concrete channel within a river constitutes a discharge of a pollutant. The Natural Resources D . . .

Averil M. Edwards ; Jay Holloway

On January 7, 2013, the D.C. Circuit denied the petitioners' motion for a rulemaking deadline in White Stallion Energy Center, LLC v. EPA. The petitioners had asked the court to establish a deadline for EPA to finalize its proposed reconsideration of the new source MATS and to resume briefing in the case. The court found that the petitioners' . . .

Stephanie B. Sebor ; Jay Holloway

Underwriters Laboratories recently announced that it is in the process of developing a new standard, UL 2799, Standard for Sustainability for Waste Minimization Reporting and Assessment of Zero Waste Operations. The standard will provide a framework for the evaluation of facilities, companies, or municipalities relative to their waste minimization achievements, such as sending little to no waste to landfill . . .

Stephanie B. Sebor ; May Wall; Eleni Kouimelis

 A 2012 corporate sustainability reporting study published by the Governance & ccountability Institute, Inc. (G&A) indicates that as of the end of April 2012, 53% of S&P 500 companies are currently providing sustainability reports (also known as Corporate Social Responsibility reports), compared to about 19-20% of S&P 500 companies who reported in 2010 . . .

Averil M. Edwards ; May Wall

Pursuant to a court order, on December 14, 2012, EPA finalized an update to its PM2.5 NAAQS, shifting this standard from 15 micrograms per cubic meter to 12 micrograms per cubic meter.  The prior 15 micrograms per cubic meter standard was initially set in 1997. A federal court required EPA to issue a final standard by December 1 because the agency did not meet the Clean Air Act requirement that it review standards every five years. . . .

Charles A. DeVore ; Jay Holloway

On December 21, 2012, EPA released a progress report on its ongoing comprehensive study to evaluate the potential impact on drinking water resources of hydraulic fracturing activities. The study began in late 2011 and is expected to be completed by 2014. The report describes the progress that has been made as of September 2012 on 18 ongoing research projects and describes the additional work that will be conducted . . .

May Wall ; Averil M. Edwards

A notice of intent to sue EPA was filed by a coalition of seven eastern states on December 11, 2012 to force the Agency to consider limits on methane from oil and gas drilling operations. New York, Connecticut, Delaware, Maryland, Rhode Island, Vermont, and Massachusetts joined in the notice declaring that EPA is violating the Clean Air Act because it has not met the mandate to declare and justify whether such controls a . . .

Charles A. DeVore ; May Wall

In December 2012, EPA issued revised enforcement discretion guidance regarding the applicability of the bona fide prospective purchaser (BFPP) defense to tenants of contaminated properties. EPA's revised guidance, which supersedes its 2009 guidance on the same subject, came out of its RE-Powering America's Land Initiative, a program by which the Agency has promoted renewable energy developm . . .

Averil M. Edwards ; Eleni Kouimelis

On December 5, 2012, the Congressional Research Service ("CRS") published a report critical of pending legislation in the House and Senate meant to pre-empt EPA's authority to regulate coal ash. These bills would create federal standards intended to provide a required level of protection, and a state-implemented permit program. The report states that the bills each lack detail with regard to how, when, or t . . .

Charles A. DeVore ; May Wall

EPA and the environmental organization plaintiffs in Defenders of Wildlife v. Jackson have agreed to extend the deadline for EPA to sign a notice of proposed rulemaking regarding revisions to the effluent limitation guidelines for power plants. In a Stipulated Extension filed with the court on December 10, 2012, the parties agreed to extend the deadline until April 19, 2013. This is the third extension of the original July 23, 2012 deadline in the Consent Decree, but EPA stated that . . .

Jay Holloway ; Averil M. Edwards

On December 5, 2012, the District of Columbia Circuit Court of Appeals heard oral argument in an appeal of a settlement agreement between EPA, the Sierra Club, and Defenders of Wildlife, regarding the revision of power plant effluent limitations and effluent limitation guidelines under the Clean Water Act.

As background, in 2009 EPA announced its decision to review the current effluent guidelines from steam electric power generating facilities, which were last updated in 1982. EPA de . . .

Averil M. Edwards ; Jay Holloway

Today, the Nuclear Regulatory Commission ("NRC") approved a final rule amending 10 C.F.R. Part 51 regarding the environmental impacts of renewed operating licenses. The revision is based upon the updated Generic Environmental Impact Statement ("GEIS") for the license renewal of nuclear power plants. The GEIS, first promulgated in 1996, determined that certain environmental impacts associated with license renewal were the same or similar for all plants, and therefore, could be treated on a gen . . .

Darani Reddick ; David A. Repka

On November 29, 2012, New York State Department of Environmental Conservation ("NYSDEC") released a revised set of proposed fracking regulations. As drafted, these regulations would open a large portion of the State to fracking, including the portions of the Marcellus and Utica shale plays in the State. The proposal includes additional reporting requirements for drillers seeking to refracture existing wells, and enhanced minimum stand . . .

Charles A. DeVore ; May Wall

U.S. EPA has delayed release of its highly anticipated final vapor intrusion guidance. U.S. EPA had planned to issue the final guidance on November 30, 2012, but pushed the release date to 2013 while it considers comments from its regional offices. The Office of Management and Budget will then review the final guidance, a process that will likely take at least 90 days, before U . . .

Stephanie B. Sebor ; Eleni Kouimelis

On November 16, 2012, EPA announced the proposed new source MATS standards. EPA proposed to raise the new source emission limits new EGUs for Hg, PM, HCl, sulfur dioxide, selenium, and lead. EPA proposed to revise the new source emission limits after receiving petitions for reconsideration from industry alleging that EPA had not considered all of the data in the record before establishing the emission limits for filterable PM and . . .

Stephanie B. Sebor ; Jay Holloway

The European Commission has proposed to revise its environmental impact assessment (EIA) process. The EIA process is required by Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Pursuant to this Directive, an environmental assessment is required for projects with significant environmental impacts. The purpose of an EIA is to reduce possible effects, while at the same time developing public information and consultation.

On October 3, 2012, the European Commission issued a communication on the second regulatory review relating to nanomaterials, and outlined its projects to improve the EU legislation and guarantee the safe use of nanomaterials.

The Commission stated that risk assessments should be performed on a case-by-case basis, using indications of potential risks, in terms of exposure or hazards. Although a growing volume of data has become available on the hazardous properties of nanomateria . . .

Averil M. Edwards ; Eleni Kouimelis

On August 7, 2012, the European Commission published a report on the implementation of Regulation (EC) No. 1013/2006 of June 14, 2006, regarding shipments of waste. The report focuses on the generation, treatment and transboundary shipment of hazardous waste and other waste in EU Member States from 2007 to 2009.

As background, Regulation No. 259/93 of February 1, 1993 on shipments of waste, adopted into EU  law the Basel Convention of March 22, 1989 (to which the EU is a party) o . . .

Averil M. Edwards ; Eleni Kouimelis; Marie-Leonie Vergnerie

On October 18, 2012, the Center for Biological Diversity (CBD) filed a petition with EPA under the Administrative Procedures Act, asking the Agency to revise various state water quality standards for marine pH under the Clean Water Act to address ocean acidification. According to NOAA's Pacific Marine Environmental Laboratory, . . .

Averil M. Edwards ; Jay Holloway

In a notice published in the Federal Register on November 9, 2012, EPA invited the public to identify and submit relevant data and scientific literature to inform its pending study of the impacts of fracking on drinking water. This study was undertaken at the request of Congress and includes analysis of water use in al . . .

Charles A. DeVore ; May Wall

A recent Government Accountability Office ("GAO") report requested by a group of Congressional Democrats finds that EPA enforcement actions regarding hydraulic fracturing are beset by two key difficulties: lack of baseline data and limited legal and regulatory authority. The GAO report, entitled "Key Environmental and Public Health Requirements," notes that baseline data on groundwater quality and other pre-drilling conditions are generally . . .

Charles A. DeVore ; May Wall

On November 5, the Clean Air Act Scientific Advisory Committee ("CASAC") held a teleconference as a part of EPA's evaluation of potential revisions to the ozone NAAQS set in 2008. CASAC was established by Congress to oversee EPA's ozone NAAQS review, considering ozone's risks to health as well as the potential adverse economic impacts of a stricter standard. The committee is in the process of finalizing recommendations to revise the standard that was set in 2008 at 75 parts per billion ("ppb" . . .

Charles A. DeVore ; Jay Holloway

Under its Smart from the Start initiative, the Bureau of Ocean Energy Management ("BOEM") has identified a number of offshore Wind Energy Areas ("WEAs") suitable for wind energy development and has conducted environmental reviews under the National Environmental Policy Act ("NEPA") to determine the suitability of development in identified WEAs. The next step in the process will be the issuance of c . . .

Averil M. Edwards ; May Wall

On October 25, 2012, industry intervenors the National Mining Association (NMA) and Utility Solid Waste Activities Group (UWAG) filed a motion for summary judgment in Appalachian Voices v. Jackson, a lawsuit filed by environmental groups and coal ash recyclers seeking a deadline for EPA to issue a fine rulemaking on coal ash. The plaintiffs alleged that EPA has violated its non-discretionary duty under RCRA § 2002(b) by not completing a review and revision, if necessary, of coal ash . . .

Stephanie B. Sebor ; Jay Holloway

On October 19, 2012, the National Association of Manufacturers and the Chamber of Commerce of the United States of America filed a petition for review of the SEC's Conflicts Minerals Rule in the U.S. Court of Appeals for the D.C. Circuit. The petition asks that the "rule be modified or set aside in whole or in part. . . .

Stephanie B. Sebor ; May Wall

On October 17, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in a case in which environmental groups are seeking more stringent rules for cutting fine particulate matter (“PM2.5”) emissions in non-attainment states. EPA issued the current PM2.5 rules under Title I, part D, subpart 1 of the Clean Air Act. The environmental groups argue that PM2.5 should be regulated under Title I, part D, subpart 4, which applies to coarse particulate matter (“PM10”). S . . .

Charles A. DeVore

In recent weeks, Sierra Club and other environmental organizations have filed petitions for review in four federal appellate courts seeking review of regional haze SIPs and FIPs in ten states that relied on CSAPR, which was found to violate the Clean Air Act in EME Homer City Generation, L.P. v. EPA. EPA had previously determined t . . .

Stephanie B. Sebor ; Jay Holloway

U.S. EPA's draft report of its investigation of groundwater contamination related to fracking in Pavilion, Wyoming, marked the first time EPA publicly indicated that fracking could have caused contamination of a drinking water aquifer. This draft report has drawn sharp criticism since its publication on December 14, 2011. 

Recently, the U.S. Geological Survey ("USGS") released results of additional groundwater sampling in Pavilion in a report dated September 26. EPA stated that . . .

Charles A. DeVore ; May Wall

On October 3, 2012, environmental groups filed a complaint before the Illinois Pollution Control Board alleging that groundwater pollution leached from coal-ash ponds at four Midwest Generation facilities. Sierra Club, Environmental Law and Policy Center, Prairie Rivers Network, and Citizens Against Ruining the Environment allege that coal-ash ponds at Midwest Generation's facilities in Joliet, Pekin, Waukegan, and Romeoville, Illinois have released contaminants into the groundwater, causing . . .

Charles A. DeVore ; Jay Holloway

The Federal Trade Commission (“FTC”) recently announced the long awaited final update to its Guides for the Use of Environmental Marketing Claims, also known as the Green Guides. The purpose of the Guides is to provide advertisers with guidance regarding how the FTC will apply Section 5 of the FTC Act to environmental advertising and marketing. For more information, click here for . . .

Brian D. Fergemann

On October 5, 2012, EPA filed a petition seeking a rehearing en banc of the D.C. Circuit’s decision to vacate CSAPR on August 21, 2012. In its petition, EPA relied heavily on Judge Judith Rodgers’ dissent, arguing that the D.C. Circuit lacked jurisdiction to determine that the States were not required to submit transport SIPs unless EPA had first defined their level of significant contribution. EPA also argued that the petitioners had waived arguments presented to the court by not first raisi . . .

Stephanie B. Sebor ; Jay Holloway

On September 12, 2012 the U.S. Court of Appeals for the D.C. Circuit granted EPA’s motion in White Stallion Energy Center v. EPA to stay the lawsuits challenging the new source MATS while EPA reconsiders the rule. On July 20, 2012, EPA granted partial reconsideration of the new source MATS, including measurement issues related to mercury and the data underlying the PM and HCl emissions standards. The EPA argued that proceeding in the case would “be a waste of the Court’s resources, a . . .

Jay Holloway ; Stephanie B. Sebor

In our March 5, 2012 blog entry, we reported that The Scotts Miracle-Gro Company, the world’s largest marketer of residential use pesticides, pleaded guilty to illegally applying to its wild bird food products insecticides that are toxic to birds, falsifying pesticide registration documents, distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides. That plea was su . . .

May Wall ; John Fehrenbach

Jay Holloway and Eleni Kouimelis will lead a webinar titled Decommissioning, Decontamination and Demolition of Power Plants this Thursday, September 6. This presentation will discuss the regulatory drivers associated with coal plant shutdown decision-making as well as repowering due to the low cost of natural gas. It will also address . . .

Eleni Kouimelis ; Jay Holloway

Today, the U.S. Court of Appeals for the D.C. Circuit vacated the Cross-State Air Pollution Rule (CSAPR) in EME Homer City Generation L.P. v. EPA. The court held that CSAPR exceeded EPA’s authority under the Clean Air Act because the rule would require upwind states to reduce emissions beyond their significant contribution to downwind state nonattainment with th . . .

Jay Holloway ; Stephanie B. Sebor

On July 27, 2012, EPA announced it will delay issuance of the area designations for the 2010 primary sulfur dioxide (SO2) national ambient air quality standard (“NAAQS”) by up to one year, citing insufficient information to make the designations by the previous deadline of June 2012. The SO2 NAAQS was revised by EPA on June 3, 2010 to a 1-hour standard of 75 ppb. Under the Clean Air Act, the EPA is required to designate areas as attainment, nonattainment, or unclassifiable within 2 years afte . . .

Averil M. Edwards ; Jay Holloway

On July 17, the EPA reached an agreement with plaintiffs in the Riverkeeper action to delay by one year the release of a final rule under Section 316(b) of the Clean Water Act to regulate cooling water intake structures at industrial facilities and power plants. The new deadline for the final rule is July 27, 2013.

The proposed rule was released in April 2011 and attracted significant concerns from industry, mostly due to the inclusion of stringent impingement mortality standa . . .

Averil M. Edwards ; Jay Holloway

On July 20, 2012, the U.S. Court of Appeals for the District of Columbia dismissed in part and denied in part petitions to review the new one-hour SO2 National Ambient Air Quality Standard (NAAQS) of 75 parts per billion (ppb). Several states and state regulatory agencies, together with corporations and industrial associations petitioned for review of the new hourly standard on the ground that EPA: (1) failed to follow n . . .

Jay Holloway

Regulation no. 528/2012, dated May 22, 2012, of the European Parliament and Council concerning “the placing on the market and use of biocidal products," jointly adopted by the European Council and Parliament, was published in the Official Gazette of the European Union on June 27, 2012 and replaces Directive 98/8/EC.

The following products now fall within the scope of the definition of biocidal products: “any substance or mixture, in the form in which it is supplied to the user . . .

Francois Harrouet

On July 17, 2012, the U.S. Court of Appeals for the District of Columbia upheld the new one-hour NO2 National Ambient Air Quality Standard (NAAQS) of 100 part per billion. American Petroleum Institute (API) and the Utility Air Regulatory Group (UARG) challenged the new hourly standard on the ground that the rule’s adoption was arbitrary and capricious because: (1) the Environmental Protection Agency (EPA) violated its own requirement to rely on published, peer reviewed studies when reviewing . . .

Jay Holloway

On June 29, 2012, the EPA proposed a new, more stringent national ambient air quality standard (NAAQS) for fine particulate matter (PM 2.5). The proposed revision would reduce the current annual PM 2.5 standard from 15 micrograms per cubic meter (µg/m3) to a range of 12-13 µg/m3.

In February 2012, various environmental groups and several states filed suit against EPA to enforce its non-discretionary duty under . . .

Charles A. DeVore ; Jay Holloway

Two recent EPA actions will have a substantial impact on air quality and alternatives for satisfying air regulations. On May 30, 2012, the EPA took final action to allow states to comply with the Regional Haze Rule by making emissions reductions under the Cross-State Air Pollution Rule (“CSAPR”) rather than the potentially more costly best available retrofit technology (“BART”) approach. On June 5, 2012, the EPA . . .

Charles A. DeVore ; Eleni Kouimelis; Jay Holloway; Liz Williamson

On May 24, 2012, the Ohio legislature passed Sub. S.B. 315, which will expand existing fracking chemical public disclosure requirements in the state. Ohio became the first state to require public disclosure of the chemical content of fracking fluids in 2010, and the new bill, which was proposed by Ohio Governor John Kasich, will bolster the existing law with new disclosure, water sampling, and recordkeeping requirements. . . .

Stephanie B. Sebor ; John Fehrenbach

On the same day the Bureau of Land Management (BLM) issued a Right-of-Way (ROW) Notice to Proceed authorizing Ocotillo Express, LLC to begin construction of a 315 MW wind energy project on federal land in California, the Quechan Tribe of the Fort Yuma Indian Reservation filed a lawsuit in federal court seeking to enjoin construction. The May 14, 2012 lawsuit against the United States . . .

Averil M. Edwards ; May Wall

In a May 16, 2012, notice in the Federal Register, the EPA withdrew a direct final rule that would have revised emissions budgets and new unit set-asides for various states under the Cross-State Air Pollution Rule. On February 21, 2012, the EPA had published this direct final rule alongside a proposed version of the rule. At that time EPA stated that if it received comments critical o . . .

Charles A. DeVore ; Jay Holloway; Liz Williamson

On May 4, 2012, the Bureau of Land Management (BLM) announced a proposed rule that would require public disclosure of chemicals used in hydraulic fracking operations at oil and gas wells on Federal and Indian lands. As proposed, the rule would require companies to disclose the chemicals used in the fracking process after the fracking operation is completed. Specifically, the . . .

Stephanie B. Sebor ; May Wall

On May 4, 2012, the EPA released draft Underground Injection Control (UIC) permitting guidance for oil and gas hydraulic fracturing fluid injection activities involving the use of diesel fuels. These activities are subjec . . .

Averil M. Edwards ; May Wall

On April 13, 2012, President Obama signed an executive order forming an interagency working group to promote the safe development of domestic natural gas. This working group will include officials from at least 13 administrative agencies and executive departments including the EPA, Department of Energy, Department of Transportation, and the Office of Science and Technology Policy. The group was established to promote int . . .

Charles A. DeVore ; May Wall

On April 4, 2012, the United States Environmental Protection Agency ("EPA") issued guidance announcing its Ozone Advance program. The Ozone Advance program is designed to encourage state, tribal and local governments to take early action to reduce ground-level ozone concentrations in order to continue progress toward maintaining the National Ambient Air Quality Standards ("NAAQS") for ground-level ozone.

Acco . . .

Laura A. Fleischmann ; Jay Holloway

Representative Pete Olson (R-TX), together with five cosponsors, introduced H.R. 4273 on March 28, 2012. The bill, entitled the "Resolving Environmental and Grid Reliability Conflicts Act of 2012," seeks to clarify that compliance with an emergency order under section 202(c) of the Federal Power Act may not be considered a violation of any Federal, State, or local environmental law or regulation. The bill is a bipartisan effo . . .

Kyle E. Gilbertson ; May Wall; Jay Holloway

Today EPA issued its long-awaited greenhouse gas (GHG) new source performance standards for new fossil fuel-fired electric generating units (EGUs). The proposed rule sets a stringent limit of 1,000 lb carbon dioxide/MWh for new fossil fuel-fired EGUs of more than 25 MW net electrical output. (Coal-fired power plants typically emit an average of 1,768 lb carbon dioxide/MWh.) The proposed carbon dioxide limit is base . . .

Averil M. Edwards ; Jay Holloway

On March 20, 2012, the Environmental Protection Agency (EPA) finalized the secondary National Ambient Air Quality Standards (NAAQS) for NO2 and SO2. As proposed, EPA retained the existing standard and opted not to set a novel joint secondary standard for NO2 and SO2 at this time. After reconsidering its initial proposal, EPA declined to adopt a new set of secondary standards identical to the primary 1-hour NO2 and SO2 standards. Even in the proposed rule, EPA recognized that setting this . . .

Jay Holloway

On March 23, 2012, the U.S. Fish & Wildlife Service (FWS) released its final Land-Based Wind Energy Guidelines, which aim to reduce impacts to wildlife from wind energy development and promote compliance with the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act. The final guidelines are effective immediately and replace voluntary interim guidelines FWS released in 2003. FWS re . . .

Stephanie B. Sebor ; Eleni Kouimelis; Averil M. Edwards

The big environmental news of the day was the Supreme Court's decision in Sackett v. EPA. We are preparing a longer Briefing on this important case, but wanted to share our preliminary thoughts in the interim.

In a decisive and unanimous opinion, the Court dealt a harsh blow to EPA's use of administrative compliance orders under the Clean Water Act, by holding that these orders are subject to pre-en . . .

Averil M. Edwards ; John Fehrenbach; Eleni Kouimelis

Two subcommittees of the House of Representatives' Committee on Energy and Commerce, the Subcommittee on Energy and Power and the Subcommittee on Environment and the Economy, recently held a joint hearing on EPA's Fiscal Year (FY) 2013 budget request. EPA Administrator Lisa Jackson was the sole witness at the February 28, 2012 hearing.

Administrator Jackson discussed some of the highlights of EPA's budget request in . . .

Averil M. Edwards ; May Wall

Last week, the U.S. Court of Appeals for the D.C. Circuit heard two days of oral arguments in cases challenging four of EPA's greenhouse gas (GHG) rules: the endangerment finding, the tailpipe rule, the timing rule, and the . . .

Stephanie B. Sebor ; Averil M. Edwards; Jay Holloway

Federal court documents in Columbus, Ohio reveal that The Scotts Miracle-Gro Company, a lawn and garden chemicals company, has agreed to plead guilty to violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), pay a $4 million criminal fine, and donate $500,000 to help support wildlife study and habitat preservation. The fine is believed to be the largest fine ever levied on a pesticide company. The proposed Plea Agreement, which was filed in U.S. District Court for the Sout . . .

John Fehrenbach

On February 27, 2012, EPA released a proposed rule to maintain the existing applicability thresholds for PSD and Title V GHG permitting. The proposed rule will be part of the Tailoring Rule, which “tailored” the PSD and Title V permitting requirements to GHG emissions. Steps One and Two of the Tailoring Rule were finalized in 2010. Step One, which became effective on January 2, 2011, required stationa . . .

Averil M. Edwards ; Jay Holloway

On February 23, 2012, the Asian Carp Regional Coordinating Committee (ACRCC) released its FY 2012 Asian Carp Control Strategy Framework. The ACRCC is a partnership between the Executive Office of the President, numerous federal agencies including the Army Corps of Engineers (Corps), Great Lakes states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Wisconsin, and Pennsylvania, and the City of Chicago. The ACRCC's mission is to create a sustainable solution that prevents the invasio . . .

Averil M. Edwards ; May Wall

On February 7, 2012, the Federal Energy Regulatory Commission (FERC) and the National Association of Regulatory Utility Commissioners (NARUC) held a forum in Washington, D.C., to address growing concerns about implementation of the Utility MACT. These include concerns that implementation of the rule may harm electrical grid liability, that there is a lack of certainty in implementation because multiple agencies are involved, and that the Utility MACT still has critical flaws.

At the f . . .

Charles A. DeVore

Over the past three years, wind energy developers and conservation groups have worked together to develop a set of voluntary best practices for siting and building wind energy projects in Colorado while minimizing adverse environmental impacts. Five environmental groups and ten wind developers, working collectively as the Colorado Renewables and Conservation Collaborative, have developed wind energy guidelines that simultaneously . . .

Charles A. DeVore ; May Wall

On January 18, 2012, several environmental groups, led by Earthjustice, filed a notice of intent to sue the EPA to force the agency to finalize its proposed rule determining how coal combustion residuals (commonly referred to as “coal ash”) will be categorized. Coal ash is currently subject only to state regulation. While environmentalists are leading the charge to finalize a federal coal ash rule, industry strongl . . .

Charles A. DeVore ; May Wall

The Ohio Department of Natural Resources (ODNR) has announced an agreement with the operator of a wastewater disposal well located in Youngstown, Ohio to shut down one active well, and, as a precautionary measure, delay the start-up of four proposed wells, following a 4.0 magnitude earthquake that hit t . . .

Averil M. Edwards ; May Wall

On January 18, 2012, the U.S. Environmental Protection Agency (EPA) posted its November 2011 Action Initiation List (AIL). The AIL lists actions that were initiated by EPA in the month of November and is current through December 15, 2011. The AIL indicates that EPA initiated a notice of proposed rulemaking with respect to the implementation of the 2008 eight-hour ozone National Ambient Air Quality Standards ( . . .

Laura A. Fleischmann ; Jay Holloway; Liz Williamson

On January 13, 2012, the White House released a controversial plan to move the National Atmospheric and Oceanic Administration (NOAA) into the Interior Department. The NOAA is currently in charge of atmospheric science, fisheries, and ocean energy development.

In his January 2011 State of the Union address, President Obama highlighted bureaucra . . .

Charles A. DeVore ; May Wall

On January 3, 2012, the Fish and Wildlife Service (FWS) announced that it received the first application for a programmatic permit for the take of golden eagles under the Bald and Golden Eagle Protection Act. The application was filed by West Butte Wind Power, LLC for its proposed 104-megawatt wind energy project in central Oregon, pursuant to . . .

Stephanie B. Sebor ; Averil M. Edwards

On December 27, 2011, the US Bureau of Land Management ("BLM") issued guidance targeted at protecting the greater sage grouse habitat that has since drawn sharp criticism from state officials, industry, and environmental groups. These guidance documents contain temporary measures to manage the 47 million acres of sage grouse habitat under BLM control while the agency works to develop a comprehensive strategy for the habitat over the next three years.  . . .

Charles A. DeVore ; May Wall

On December 29, 2011, the Office of Inspector General (OIG) released a report detailing the results of its investigation into how effectively EPA is managing the human health and environmental risks of nanomaterials. After examining EPA's statutory authority and ongoing regulatory efforts, the report concluded that "EPA does not currently have sufficient information or processes to effectively manage the human health and . . .

Stephanie B. Sebor ; John Fehrenbach

Today, EPA released its finalized Utility MACT rule. The final rule is largely the same as proposed, with a few important differences. EPA has finalized emission limits for only filterable PM, whereas the proposed rule set limits on both condensable and filterable PM. Further, the final rule has altered the requirements for averaging Hg emissions across facilities. The final rule also establishes work prac . . .

Jay Holloway ; Stephanie B. Sebor

On December 13, 2011, the Colorado Oil and Gas Conservation Commission (“COGCC”) unanimously approved a statewide rule requiring gas companies to disclose chemicals used during hydraulic fracturing. This is the strictest such rule in the country, primarily because it does not offer the carte blanche trade secrets protection available for fracking chemicals in many states.

The new disclosure rule is the product of collaboration between state of . . .

Charles A. DeVore

On December 15, 2011, EPA finalized its supplemental Cross-State Air Pollution Rule (CSAPR) rulemaking, concluding that “Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone National Ambient Air Quality Standards (NAAQS) in other states.” EPA’s final rule establishes ozone season NOx Federal Implementation Plans (FIPs) for Iowa, Mich . . .

Jay Holloway ; Stephanie B. Sebor

On December 11, 2011, delegates at the United Nations climate change summit in Durban, South Africa (formally, the 17th Conference of the Parties, or COP17), reached agreement on a new international legally binding regime to regulate carbon emissions that will go into effect in 2020. Additionally, delegates agreed to launch the Green Climate Fund by 2020, and to establish a second commitment period for limiting greenhouse gas emissions under the Kyoto Protocol.

The COP17 summit had . . .

May Wall ; Charles A. DeVore

On December 2, 2011, the EPA proposed revised standards for toxic air pollutants from boilers at major sources, area sources and commercial and industrial solid waste incinerators (CISWI). When the EPA issued final boiler MACT and CISWI rules on February 21, 2011, it concurrently initiated a reconsideration process putting the final rules in limbo pending further public comments. During . . .

Charles A. DeVore ; Averil M. Edwards; Jay Holloway

On December 8, the EPA issued a draft report which indicated that gas production activities, including hydraulic fracturing, are the likely causes of groundwater contamination identified in Pavillion, Wyoming. The report was lauded by environmentalists who believe it provides evidence that fracking causes groundwater contamination, a contention they have long held. The Pavillion investigation . . .

Averil M. Edwards ; May Wall

On November 15, 2011, the United States Geological Survey (USGS) announced a study of the water quality of private and public drinking water wells in two North Carolina counties, in advance of potential shale gas exploration. The study will be conducted by the USGS and the Duke University Nicholas School of the Environment. Water quality sampling and data collection will be conducted from November 2011 through September 2012. 

Currently, there is no shale gas production occurring . . .

Averil M. Edwards ; May Wall

On November 29, 2011, the EPA finalized amendments to its greenhouse gas reporting rule. These amendments include a one-time six-month extension of the reporting deadline for 12 industries, and clarification reporting obligations. Additionally, the amendments limit the reporting requirements for underground coal mines and require industries to notify EPA when they use alternative methods for calculating greenhouse gas emissions.

EPA has extended the reporting deadline from March 31, . . .

Jay Holloway ; Charles A. DeVore

In an interesting development, the Delaware River Basin Commission ("DRBC") announced on November 18th that it would postpone the vote on fracking regulations that was originally scheduled for November 21, 2011. The proposed regulations were predicted to substantially advance fracking operations in the Delaware River Basin, and had been met with fierce resistance from several quarters. New York Attorney General Eric Schneiderman and several environmental groups filed suit in federal . . .

May Wall ; Charles A. DeVore

EPA has decided to make publicly available on its website internal watch lists of alleged violators of environmental laws. The watch lists contain the names, addresses, and facility identification numbers of facilities that EPA alleges have committed serious violations of the Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA) or Clean Air Act (CAA), but for which EPA has not yet filed an enforcement action. EPA . . .

Stephanie B. Sebor ; May Wall; Eleni Kouimelis

Winston & Strawn attorneys May Wall, Robin Lunn, Doressia Hutton, and Averil Edwards led an eLunch on November 16 titled "Hydraulic Fracturing: Regulatory Developments and Litigation Trends." This practical and interactive p . . .

May Wall ; Averil M. Edwards; Doressia L. Hutton

On November 8, 2011, the Delaware River Basin Commission (DRBC) released draft final regulations that are likely to advance fracking operations in Delaware, New Jersey, Pennsylvania, and New York, but not without court challenges and controversy. DRBC is a federal-interstate compact agency which regulates water quality protection, water supply allocation, regulatory permitting, and water conservation initiatives f . . .

May Wall ; Charles A. DeVore

On November 9, 2011, EPA announced a schedule for taking action on 45 regional haze state implementation plans (SIPs). The U.S. District Court for the District of Columbia ordered this schedule in a consent decree which resolved a suit filed by National Parks Conservation Association and other environmental groups in August 2011. EPA initially issued a rule requiring states to submit regional haze plans in 1999, with the plans being due by late 2007. In August 2011, environmental groups . . .

Charles A. DeVore ; Eleni Kouimelis; Jay Holloway

Winston & Strawn attorneys have joined with Environmental Resources Management (ERM) to present "The Future of Electric Generating Units Under the EPA's New NSR Rules, Cross-State Air Pollution Rules, and New Clean Air Act Regulations." This informative seminar took place at Winston & Strawn's San Francisco office on November 8, 2011 and will take place at the Chicago office . . .

Jay Holloway ; Liz Williamson

On October 20, 2011, the United States Environmental Protection Agency (EPA) announced that it will develop national standards for the disposal of wastewater generated by fracking and shale gas production. The EPA indicated the new standards are necessary due to the tremendous increase in shale gas production in recent years. The disposal of . . .

May Wall ; Eleni Kouimelis; Averil M. Edwards; Charles A. DeVore

On October 21, 2011, the United States District Court for the District of Columbia granted a one-month extension of EPA's initial November 16, 2011, deadline for releasing the final utility MACT rule. EPA officials had expected to meet the November 16 deadline, but requested a one-month extension in order to review more than 900,000 public comments on the proposed version of the rule. The Utility Air Regulatory Group (UARG) filed a . . .

Jay Holloway ; Charles A. DeVore

The Federal Energy Regulatory Commission will hold a two-day technical conference on November 29 and 30 to hear comments and concerns about possible effects on service reliability that may result from new Environmental Protection Agency rules on coal-fired generation. Among the topics for discussion will be "emerging issues, including processes used by planning authorities and other entities to identify reliability concerns that may arise in the course of compliance with Environmental Pr . . .

May Wall

EPA has defended itself against a recent OIG report that faulted the Agency for failing to follow OMB requirements in peer reviewing the scientific data used to support its GHG endangerment finding. Specifically, the reviewers' findings were not publically reported, and one of the 12 reviewers was an EPA employee. The endangerment finding, published on December 15, 2009, provided the legal basis for EPA's regulation of GHG e . . .

Averil M. Edwards ; Jay Holloway

The State of New York, which already has a rigorous permitting process for oil and gas drilling, has issued a revised environmental impact statement and proposed regulations governing high-volume hydraulic fracturing ("fracking") and horizontal drilling. The revised draft Supplemental Generic Environmental Impact Statement ("SGEIS") was released September 7 by the Ne . . .

Averil M. Edwards ; May Wall; Eleni Kouimelis; Doressia L. Hutton; Jay Holloway

New energy use disclosure regulations, concerns about energy security, ever-rising energy costs, and a variety of other factors have made building energy efficiency an increasingly important issue in commercial real estate transactions. Calculating a commercial building's energy efficiency can be complicated, however, due to variations in seasonal energy use, tenant occupancy, building operating hours, and the period of time over which energy use data is collected. The American Society for Te . . .

Stephanie B. Sebor ; May Wall

Winston & Strawn environmental attorneys Jay Holloway, Michael T. Champion, and Laura A. Fleischmann hosted an eLunch titled "An Overview of the Cross-State Air Pollution Rule: What Utilities Need to Know About Implementation and the Emerging Legal and Political Challenges to the Rule" on Wednes . . .

Jay Holloway

For the second time in two weeks, EPA announced that it will either delay or drop air emissions rules that had been criticized by industry. The first was the withdrawal of new ozone NAAQS, and yesterday’s announcement that EPA will miss a September 30, 2011 deadline for proposing new source performance standards (NSPS) to limit greenhouse gas (GHG) emissions from power plants marks the second. EPA stated that i . . .

Averil M. Edwards

On August 24, 2011, EPA published a notice granting a petition requesting that EPA object to the renewal of a Clean Air Act ("CAA") Title V operating permit issued by the New Mexico Environment Department ("NMED") to the Williams Sims Mesa Central Delivery Point ("CDP"), a natural gas gathering and compression facility located near Blanco, New Mexico. The petition was submitted by the WildEarth Guardians and San Juan . . .

Sarah Anne Jehl ; Eleni Kouimelis; Jay Holloway; Liz Williamson

 On September 8, 2011, the U.S. Department of Energy (DOE) announced it would provide $43 million over the next five years for research projects to promote the development of offshore wind energy systems.  DOE will fund a total of 41 projects conducted by various energy companies, research institutions, and energy consultants.  Nineteen of the projects are offshore wind technology projects; the remaining 22 projects will research market barriers to offshore wind projects such a . . .

Averil M. Edwards ; May Wall; Eleni Kouimelis

The Ohio EPA is currently developing a new general permit that will apply to shale gas production operators. In an August 18, 2011 press release, the Ohio EPA claimed that the general permit will create consistent standards and that applicants will be able to apply for and receive a permit in as little as two weeks.  The draft general permit covers shale gas site emission sources such as internal combusti . . .

Averil M. Edwards ; Jay Holloway

On August 23, 2011, the United States District Court for the Eastern District of Michigan granted summary judgment in favor of Detroit Edison and DTE Energy in a New Source Review (NSR) enforcement action. The United States filed its complaint against the utility c . . .

Stephanie B. Sebor ; Jay Holloway

On September 2, 2011, President Obama released a public statement requesting that EPA Administrator Lisa P. Jackson withdraw the recently proposed ozone National Ambient Air Quality Standards (NAAQS).

In 2009, EPA undertook a voluntary review of the 2008 ozone NAAQS in response to environmentalist claims that the 2008 standard was not protective enough. In January 2010, EPA proposed to tighten the primary ozone standard from 75 parts per billion to a range within 60 to 70 ppb. On July . . .

Laura A. Fleischmann ; Jay Holloway

In an order issued on July 20, 2011, the Kansas Department of Health and Environment (KDHE) granted a stay of the 18-month construction period provided for in the final air permit issued to an 895-megawatt coal-fired facility proposed by Sunflower Electric Power Corp. to be built in Holcomb, Kansas. The stay, which is unprecedented in Kansas, provides Sunflower with more time to begin constructing . . .

Sarah Anne Jehl ; Averil M. Edwards; Jay Holloway; Liz Williamson

On August 22, 2011, the West Virginia Department of Environmental Protection (WVDEP) filed an emergency rule with the Secretary of State to address concerns regarding drilling for shale gas. The rule addresses horizontal drilling and fracking practices that are used to produce shale gas.  Upon approval by the Secretary of State, the rule will remain in effect for 15 months and will require submit . . .

Averil M. Edwards ; Eleni Kouimelis

The Seventh Circuit Court of Appeals has issued a decision in the ongoing legal saga regarding the invasive Asian carp that is threatening the Great Lakes ecosystem. On August 24, 2011, a three-judge panel of the Seventh Circuit denied the request of five Great Lakes states for a preliminary injunction requiring the Metropolitan Water Reclamation District of Greater Chicago ("District") and the Army Corps of Engineers ("Corps") to take certain measures to prevent the migration of Asian carp i . . .

Averil M. Edwards ; May Wall

On August 8, 2011, Illinois Governor Pat Quinn signed into law two bills that affect renewable energy projects in Illinois. The first, Public Act 097-0266, requires the Illinois Department of Natural Resources (IDNR) to prepare a report that evaluates offshore wind energy projects in Lake Michigan. The report will provide recommendations for necessary legislation and regulations regarding offs . . .

Averil M. Edwards ; May Wall; John Fehrenbach

EPA's recently finalized Cross State Air Pollution Rule (CSAPR) regulates sulfur dioxide and nitrogen oxide emissions in 27 states that contribute to ozone and particulate matter pollution in downwind states. CSAPR's sulfur dioxide and annual nitrogen oxide emissions reductions become effective in January 2012 – only five short months away – and the second phase of sulfur dioxide reductions for Group 1 states begins i . . .

Stephanie B. Sebor ; Jay Holloway

On July 6, 2011, EPA finalized the Cross State Air Pollution Rule (CSAPR) to replace the Clean Air Interstate Rule (CAIR), which was invalidated by the U.S. Court of Appeals for the D.C. Circuit in 2008. CSAPR addresses emissions under section 110(a)(2)(D)(i)(I) of the Clean Air Act (CAA). This section, referred to as the "Good Neighbor" provision, prohibits a state from producing emissions that will significantly contribute to nonattainment or interfere with maintenance of NAAQS in any . . .

Laura A. Fleischmann ; Jay Holloway

The EPA is in the process of developing Underground Injection Control (UIC) Class II permitting guidance under the Safe Drinking Water Act (SDWA) for hydraulic fracturing ("fracking") activities that use diesel fuels in fracturing fluids. Pressure for the development of such guidance has come in large part from many environmental and citizen groups. These groups are concerned that the use of diesel fuel during the injection process used to free trapped reserves of natural gas and oil tha . . .

Sarah Anne Jehl ; Eleni Kouimelis; Jay Holloway

EPA is currently studying the potential impacts of hydraulic fracturing ("fracking") on drinking water supplies and groundwater as directed by Congress in its FY2010 Appropriations Committee Conference Report. The Congressional directive was issued amidst increased public concerns raised about the environmental impacts of fracking. Currently, fracking fluids (except diesel fuel) are exempt from the Safe Drinking Water Act's underground injection control program, which regulates the undergroun . . .

Averil M. Edwards ; Eleni Kouimelis

A draft of the Department of Energy (DOE) Natural Gas Subcommittee's report of its 90-day findings was issued on August 11, 2011. The draft 90-day report presents recommendations to reduce environmental impacts from shale gas production, which has rapidly developed in the United States in recent years. The Natural Gas Subcommittee of the Secretary of Energy Advisory Board (SEAB) was created in January 20 . . .

Averil M. Edwards

EPA's recently finalized Cross State Air Pollution Rule (CSAPR) requires upwind states to reduce the portion of their state-wide nitrogen oxides and sulfur dioxide emissions that contribute significantly to nonattainment or interfere with maintenance in another state with the annual fine particle matter, 24-hour fine particle matter, and ozone NAAQS. To achieve these reductions, CSAPR establishes nitrogen oxides and sul . . .

Stephanie B. Sebor ; Jay Holloway

The International Organization for Standardization (ISO) recently published a new standard for establishing, implementing, maintaining, and improving an energy management system, known as ISO 50001. The ISO 50001 standard is a foundational tool that industrial, commercial, institutional, and governmental facilities of all sizes can use to manage energy and improve energy performance. An effectively implemented ener . . .

Stephanie B. Sebor ; John Fehrenbach

On August 4, 2011, Earthjustice petitioned EPA on behalf of a group of environmental organizations, to promulgate rules under sections 4 and 8 of the Toxic Substances Control Act (TSCA), requiring that manufacturers and processors of oil and gas exploration and production chemicals identify and conduct toxicity testing, and submit all non-public health and safety studies regarding these chemicals. In the petition . . .

Averil M. Edwards ; Eleni Kouimelis; Jay Holloway

EPA's Proposed Rule Regarding Carbon Capture Sequestration (CCS) Technologies Removes Another Hurdle to EPA's Potential Assessment of CCS as Best Available Control Technology (BACT) for Greenhouse Gases.

On August 4, 2011, EPA proposed a rule that could serve to facilitate the use of carbon capture and sequestration technologies (CCS) as a method of best available control technology (BACT) for the . . .

Laura A. Fleischmann ; Jay Holloway

The Denver Business Journal reported yesterday that Colorado Governor John Hickenlooper indicated in a speech before an oil and gas trade group that he expects the Colorado Oil and Gas Conservation Commission to promulgate a new rule requiring oil and gas companies to disclose the ingredients used in hydraulic fracturing (a.k.a. "fracking") fluids by the end of this year. According to the ar . . .

Averil M. Edwards ; Jay Holloway

According to EPA press secretary Brendan Gilfillan, EPA will not finalize the new ozone national ambient air quality standard (NAAQS) in time to meet its self imposed July 29th deadline. In 2008, the Bush administration set the primary and secondary ozone NAAQS at 0.075 parts per million (ppm), a standard that diverged from the recommendations of Clean Air Science Advisory Committee (CASAC), an independent committee of scientists that provides recommendations regarding protective standards to . . .

Laura A. Fleischmann ; Jay Holloway

A new standard has been published by the American Society for Testing and Materials (ASTM) entitled "Standard Guide for Identifying and Complying with Continuing Obligations" (standard number E2790-11). The standard provides guidance on identifying and fulfilling continuing obligations, which under the Brownfields Amendments to the Comprehensive Environmental Response, Compensa . . .

Stephanie B. Sebor ; May Wall

When EPA finalized the Cross-State Air Pollution Rule (CSAPR) on July 6, it also announced a supplemental notice of proposed rulemaking entitled "Federal Implementation Plans for Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin," which was published in the Federal Register on July 11. In the supplemental action, EPA sought comment on its conclusion . . .

Stephanie B. Sebor ; Jay Holloway

On July 19, 2011 EPA announced a 30-day extension of the public comment period for its proposed rule to regulate cooling water intake structures under Section 316(b) of the Clean Water Act. Public comments are now due on August 18, 2011. Many industry sources had requested that EPA . . .

Averil M. Edwards ; Jay Holloway

On July 13, 2011, USEPA submitted to the White House Office of Management & Budget (OMB) for review a proposal containing revised determinations for eight industry sectors on the categories of data submitted under the Greenhouse Gas (GHG) Reporting rule that may be claimed as confidential. These industry sectors include: (1) petroleum and natural gas systems; (2) electronics manufacturing; (3) electric transmission and distribution equipment manufacturing; (4) electric transmiss . . .

Sarah Anne Jehl

EPA announced today that it has finalized the Clean Air Transport Rule. The Transport Rule, which is now formally known as "The Cross-State Air Pollution Rule" (CSAPR) is intended to replace the 2005 Clean Air Interstate Rule (CAIR), which the U.S. Court of Appeals for the D.C. Circuit ordered EPA to revise in 2008. The court allowed CAIR to remain in place temporarily while the EPA worked to finalize CSAPR. EPA will continue to implement CAIR through the 2011 compliance periods after which i . . .

Michael T. Champion ; Jay Holloway

On June 28, 2011, the Supreme Court granted a petition for a writ of certiorari to review a Clean Water Act (CWA) ruling issued by the Ninth Circuit. The Supreme Court’s review will be limited to the following questions: 1) whether the petitioners may seek pre-enforcement judicial review under the Administrative Procedure Act (APA) of an administrative compliance order issued by EPA under the CWA; and 2) if the petitioners are precluded from seeking pre-enforcement judicial review, are their . . .

Averil M. Edwards ; John Fehrenbach

On June 27, 2011, the U.S. Coast Guard and the Environmental Protection Agency signed a Memorandum of Understanding with regard to the enforcement of air pollution from vessels in U.S. waters under Annex VI of MARPOL. Under the MOU, the EPA will develop protocols for the inspection of engines on vessels and the review and retention of documents, while the Coast Guard will adapt those protocols into its customary vessel inspection and port state control and facility examination procedures . . .

Allen Black

On June 24, 2011, EPA announced that it plans to propose new MACT standards for boilers and certain incinerators by October 31, 2011 and to issue a final rule by April 31, 2012.  EPA initially proposed air toxics standards for boilers and certain incinerators in April 2010.  After considering new information received in over 4,800 comments from business and communities during the comment period, EPA made significant changes to its final standards, which were published in Februar . . .

Stephanie B. Sebor ; Jay Holloway

On June 13, 2011, EPA announced that it has entered into an agreement with the litigants in New York v. EPA to extend the deadline for proposing new source performance standards (NSPS) for greenhouse gas (GHG) emissions from electric generating units (EGUs) from July 26, 2011 until September 30, 2011. In its announcement, EPA stated that it needs more time to evaluate information it received during listening sessions with industry, states, and environmentalists in order to estab . . .

Stephanie B. Sebor ; Jay Holloway

Yesterday, the EPAextended the public comment period by 30 days for its proposed Mercury and Air Toxics Rule for utilities (a.k.a., the Utility MACT). The current 60-day comment period on the rule was set to expire on July 5. EPA has come under increasing pressure from both sides of the aisle to either extend the comment period or to delay a final rule altogether. While much of that pressure has come from Republicans, 27 House Democrats—led by former House Energy and Comm . . .

Michael T. Champion ; Jay Holloway

On June 13, 2011, the Bipartisan Policy Center (BPC) issued a report examining reliability and cost issues associated with the following forthcoming EPA regulations: The Transport Rule, The Utility Toxics Rule, Coal Combustion Waste Disposal, Clean Water Act Section 316(b)-Cooling Water Intake Structures, and the Greenhouse Gas Performance Standards. The report concludes that . . .

Laura A. Fleischmann ; Liz Williamson

On June 17, 2011, USEPA published in the Federal Register a proposed policy for obtaining information on nanoscale materials present in pesticides. The policy defines a nanoscale material as an active or inert ingredient and any component parts thereof in a pesticide that is intentionally produced to have at least one dimension measuring between approximately 1 and 100 nanometers. USEPA's June 17 policy ulti . . .

Sarah Anne Jehl ; Eleni Kouimelis

In the latest of a string of interesting twists and turns, Comer v. Murphy Oil USA, Inc., (S.D. Miss.), a climate change case brought under Mississippi common law that had been dismissed in 2007, was re-filed by the plaintiffs on May 27, 2011 and apparently survived the June 20, 2011 decision in American Electric Power (AEP) v. Connecticut. In AEP, the United States Supreme Court held that federal common law claims are displaced by the Clean Air Act an . . .

Averil M. Edwards ; John Fehrenbach

The Supreme Court today issued a unanimous decision in American Electronic Power Co., Inc. (AEP) v. Connecticut, a climate change public nuisance action on appeal from the Second Circuit Court of Appeals. The Supreme Court reversed and remanded the Second Circuit's decision, and held that the plaintiffs' federal common law claims were displaced by the Clean Air Act and EPA regulations authorized by the Clean Air Act. However, . . .

Averil M. Edwards

As part of its recent efforts to address growing concerns over the health and safety of nanomaterials and the general absence of regulation over nanotechnology, USEPA promulgated, on May 6, 2011, a final significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA), Section 5(a)(2), for the chemical substance generically identified as multi-walled carbon nanotubes (CNT). This is the third SNUR issued by USEPA for . . .

Sarah Anne Jehl

Water policy continues to be at the forefront of the Obama Administration’s environmental initiatives. In recent months, several federal agencies including U.S. EPA, USDA, DOI, and the U.S. Army Corps of Engineers have taken numerous actions to ensure the availability of clean drinking water and protect water quality. On April 27, 2011, the Administration announced a national clean water framework that combines many of these water initiatives into a single policy statement. The framework sets . . .

Averil M. Edwards

On May 3, 2011, the Environmental Protection Agency (EPA) published in the Federal Register a proposed rule to reduce emissions of certain Hazardous Air Pollutants (HAPs) such as heavy metals, including mercury (Hg), arsenic, chromium, and nickel (Ni), and acid gases, including hydrogen chloride (HCl) and hydrogen fluoride (HF), from new and existing coal-and oil-fired electric utility steam generating units (EGUs). EPA proposes co . . .

Sarah Anne Jehl ; Jay Holloway; Liz Williamson

In a continuation of our previous blog update. the following are a few key points highlighted in EPA's preliminary plan.

• EPA plans to publish a proposed rulemaking for the Maximum Achievable Control Technology (MACT) Risk and Technology Review for Pulp and Paper Industry (Subpart S) and Chemical Recovery Combustion Sources (Subpart MM), as well as a New Source Performance Standard (N . . .
  
  Stephanie B. Sebor ; Jay Holloway

On May 26, 2011, the White House released the preliminary regulatory review plans of 30 federal agencies, including the EPA. Under Executive Order 13,563, federal agencies were required to prepare preliminary regulatory review plans explaining how each agency "will periodically review its existing significant regulations to determine whether [they] should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achievin . . .

Stephanie B. Sebor ; Jay Holloway

According to the National Journal Daily, EPA is looking to delay issuing the proposed draft New Source Performance Standards (NSPS) to control greenhouse gas (GHG) emissions by at least two months, but retain the current deadline to finalize the rules. Pursuant to two settlement agreements entered into in December 2010, EPA agreed to propose revised rules and emission guidelines containing limitations on GHGs for electric power plants and oil refineries. Under these settlement agreem . . .

Jay Holloway

Welcome to Winston and the Legal Environment, our new blog focused on legal policies and environmental issues facing industry.

As the political, corporate, and regulatory responses to recent environmental initiatives evolve, it is our goal to help our clients both understand the risks and opportunities these initiatives present and develop strategic responses that cut across multiple legal disciplines.

The purpose of the blog is to provide another avenue to help bridge the gap . . .

Eleni Kouimelis ; May Wall; John Fehrenbach; Jay Holloway; Liz Williamson