• Posts by Ronald W. Farley
    Photo of Ronald W. Farley
    Retired Partner

    Ron’s practice concentrates in the areas of Environmental and Administrative law. He counsels and represents clients on a wide variety of environmental permitting, compliance and regulatory enforcement matters and on ...

The Senate narrowly confirmed Andrew Wheeler as Administrator of the Environmental Protection Agency on Thursday, February 28, 2019, by a vote of 52-47.  No Democrats supported the nomination and one Republican also opposed.  (The Hill).  Interestingly, Senator Joe Manchin (D-W.Va.) voted against Wheeler after having been the only Democrat to support his earlier nomination as Deputy Administrator.  Manchin explained that Wheeler has not demonstrated a desire or will to make progress in standards for drinking water and has worked to roll back certain clean air standards, both of ...

EPA enforcement actions as reflected by the amount of assessed civil penalties have dropped substantially during the first two years of the Trump Administration.  (Washington Post, January 24).  According to an analysis reported there, EPA's civil fines averaged more than $500 million a year when adjusted for inflation during the twenty years prior to the beginning of the Trump Administration.  The total for 2018 was approximately 85% below that amount.  This continues but expands a trend initiated in 2017 when penalty amounts apparently dropped by half (Reuters, 2/15/2018

On December 27, EPA proposed to revise the cost finding associated with the Mercury and Air Toxics Standards (MATS) along with the risk and technology review required by the Clean Air Act.  (EPA Announcement).  The action is taken as a result of a 2015 Supreme Court decision, Michigan v. EPA.  The case involved EPA's interpretation of a section of the Clean Air Act (42 U.S.C. §7412(n)(1)(A)), which requires the agency to regulate power plants when "appropriate and necessary,"  The Court held that the agency had interpreted the provision unreasonably when it deemed cost irrelevant to the ...

The federal government, through the U.S. Global Change Research Program (USGCRP), released the Fourth National Climate Assessment, Volume II, on the Friday following Thanksgiving. (Associated Press). The new report is part of an ongoing effort by the USGCRP, a Congressionally mandated program to coordinate federal research and investments in understanding the forces shaping the global environment, both human and natural, and their impacts on society. USGCRP facilitates collaboration and cooperation across its 13 federal member agencies. The latest report can be reviewed ...

Posted in: Climate Change

The November 6 election will include environmental ballot initiatives as well as issues dividing candidates and the results should provide an interesting aspect of the election.

At the outset it's noteworthy that, on a national level, environmental issues rank down the list of issues that voters consider "very important" behind such things as healthcare, the economy, social security, taxes, and immigration, among others, and a combination of some of these will probably turn the election in most areas. (Pew Research). Nevertheless, environmental issues are significant in ...

A recently published report that studied all 417 U.S. National Parks indicates climate change is having a significant and unique impact on many of them. The study was initially widely reported in the Miami Herald on September 24, and an abstract can be found in the peer-reviewed scientific journal Environmental Research Letters. (Disproportionate Magnitude of Climate Change in United States National Parks). National Park sites appear to be warming and drying out in more pronounced ways due, in part, to the fact that many of them are at higher elevations or are located in the ...

Posted in: Climate Change

The Trump Administration announced a long-awaited proposal to roll back the Obama-era Clean Power Plan late last month. (Chicago Tribune). The action had been promised by the President and his appointees at EPA, who pursued it despite apparent ironies.

The proposed change was supported by a lengthy analysis prepared by EPA. (Regulatory Impact Analysis). Interestingly, the analysis concedes that the rollback will result in an increase in respiratory illnesses and premature deaths associated with easing the air pollution limits the Clean Power Plan would impose. (N.Y. Times

Posted in: Clean Power Plan, EPA

Irony abounds as the new Acting Administrator at EPA last Tuesday announced historic progress under the Clean Air Act even while the Administration works to roll back a number of Clean Air Act rules. On July 31, Acting Administrator Andrew Wheeler announced the release of a trends report entitled "Our Nation's Air," which summarizes air quality status and trends through the end of 2017. (Trends Report). The Report reflects on significant improvements in air quality since 1970. Overviews can be found here - (The Hill and here -- (USAToday).

Indeed, EPA's current webpage continues to ...

The Alabama Department of Environmental Management's Air Division recently issued a revised version of its long-standing guidance document "Emissions Test Protocol and Test Report Requirements." The revised 5-page document is available here. Much of the new document describes procedures for emissions test protocols and other requirements that have been in place for over thirty years. The recent change involves an added requirement that certain other test reports must now be submitted to the Department if those tests are preparatory to or linked to eventual emissions test ...

EPA Administrator Scott Pruitt has announced an effort to assess the potential health risks posed by a class of chemicals known as per-and polyfluoroalkyl substances (PFAS) that have been found in significant concentrations in the Nation's water supply. (EPA News Release: Summit Addresses PFAS). EPA already has health advisories for the presence of two particular chemicals in the PFAS family, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). (Drinking Water Health Advisories). Both PFOA and PFOS have generally been phased out or discontinued in commercial ...

Posted in: EPA, PFAS Substances

Through a combination of memoranda and a recently proposed rulemaking, EPA Administrator Scott Pruitt is moving to affect longstanding and fundamental components of EPA programs. The merits (or lack thereof) may be lost as the actions are viewed from a perspective that the Agency is becoming increasingly politicized.

Through the use of a series of guidance memoranda recently released, EPA is revamping its rules for regulating air pollution. (The Hill, April 18, 2018). We reported on two of the memos in the blog on February 6. Those relate to the change in New Source Review policy ...

Posted in: Air Pollution, EPA

EPA Administrator Pruitt announced on Monday that the Agency has completed a midterm evaluation of greenhouse gas emissions standards for cars and light-duty trucks for the model years 2022-2025. He has determined that the data is not sufficient to support the standards as currently written and that they should be revised. (EPA News Release and EPA draft notice to Federal Register). The announcement reflects the continuation of a push by auto manufacturers urging the Trump Administration to roll back these particular regulations. In February of 2017, the President met with auto ...

On February 20, the Environmental Protection Agency published in the Federal Register a request for comments on a longstanding EPA policy regarding the question of whether and to what extent discharges to groundwater might be covered under the Clean Water Act (CWA). EPA is also seeking comment on specific aspects of the central question. The notice can be viewed here (Federal Register 02/20/2018).

This request involves EPA policies that are not necessarily well known, but which are based on certain basic provisions of the CWA. The Act specifically prohibits discharge of any ...

Posted in: EPA

In late January, EPA issued a guidance memorandum related to major sources under § 112 of the Clean Air Act that will likely reduce participation in the program. The new guidance actually withdrew a previous guidance policy in which EPA took the position that, if a source emitting air pollutants under § 112 ever attains "major source" classification, it would always retain that classification. (EPA Reclassification Notice). This original once-in-always-in policy meant that a source would always remain classified as a major source even if subsequent changes in operations allowed ...

Posted in: EPA

In mid-December, EPA issued its semi-annual regulatory agenda reflecting rulemaking activities scheduled for 2018 and beyond. The overall announcement is reflected in the EPA press release and detailed explanations are available the Agency's Statement of Priorities posted on the Office of Management and Budget's website and a more specific individualized rule assessment provided at regulations.gov.

The Agency's Statement of Priorities includes a statement of its general goals. As to its regulatory responsibilities, the Statement indicates, among other things, that EPA ...

Posted in: EPA

President Trump has promised that his Administration will resolve any continuing debate on climate change. On the front line of the effort, the President's EPA Administrator, Scott Pruitt, has moved to eliminate climate change as a basis for regulatory actions. (USA Today). As an example, Pruitt has made a concerted effort to eliminate any significant restriction or limitation on the use of coal. Although interestingly, the chief of Murray Energy, the largest privately held coal mining company in the U.S., has previously advised Trump against promising a comeback for the coal ...

Posted in: Climate Change

The issue of climate change has become the focus of air emission regulations and prompted deep division in the process. The last Presidential election brought the issue to the fore in the sense that those who are now involved with developing environmental policy are skeptical of human impacts on climate, and most official discussion of the issue is being eliminated. (EPA Scientists Prevented from Discussing Climate Change: NYT & CNN). Nonetheless, investigations of the impacts of air pollution continue and results are being published on an ongoing basis. Notably, the British ...

Posted in: Air Pollution

Hurricane Maria left the entire island of Puerto Rico without power. About fifty-five percent of the nation's transmission towers were destroyed, but about 90 percent of the entire distribution network is out of operation. (Power Blackout). The problems could be compounded because the island's electrical provider, Puerto Rico Electric Power Authority (PREPA) has previously filed for bankruptcy in July. However, the destruction caused by the storm might prompt a privatization of PREPA, giving the opportunity for greater efficiencies. (Slate)

Statistics aside, some see the ...

In late August, EPA and the U.S. Army Corps of Engineers announced an extension of the public comment period for a proposal to recodify a pre-existing rule defining the scope of waters of the United States. The recodification is an interim step in a process intending to write a new definition for the term "Waters of the United States" (WOTUS). (EPA Rulemaking Process). The comment period, which was originally scheduled to end on August 28, 2017, is now extended 30 days and will end on September 27. (Federal Register 8/22/17). In a separate, but related matter, EPA has also announced a ...

Attorneys General for eleven states filed a challenge in the U.S. Circuit Court of Appeals for the District of Columbia seeking to vacate a recently announced 2-year delay in implementation of chemical safety rules. (Reuters). EPA Administrator Scott Pruitt initially announced a delay in the rule in March and then promulgated a rule modification announced in June which provides that the rule will not become effective before February, 2019. (The Hill). In the interim, the Agency will assess the rule's potential impact on businesses.

The rule was finalized at the end of the Obama ...

Posted in: Chemical Safety

Last Thursday, National Public Radio reported on a study published in the New England Journal of Medicine which offers evidence that air pollution continues to kill thousands in the United States every year. (NPR). An abstract can be viewed at the New England Journal of Medicine website here.

The study, conducted by a team from Harvard's T. H. Chan School of Public Health, concludes that approximately 12,000 lives could be saved every year by reducing the emission level of fine particulate matter by 1 microgram per cubic meter of air below current U.S. standards. While air quality has ...

Posted in: Air Pollution

President Trump is expected to announce this afternoon his decision whether to withdraw the United States from the Paris Climate Accord. (Reuters) Several news sources yesterday indicated that President Trump has decided to withdraw. (The Hill, Reuters). The expected decision follows a significant public and private lobbying effort attempting to persuade the President's thinking on the issue. (N. Y. Times).

While much of the initial intrigue may involve speculation regarding the President's motivation and what this may mean for the relative influence of different advisors ...

Posted in: Climate Change

While the Trump Administration has taken steps to dismantle or revise many of the Obama Administration's actions regarding climate change, there are conflicting opinions within the Administration and key businesses about the issue, the appropriate steps to take, and the consequences.

For example, Defense Secretary Mattis has made clear his view that climate change is real and that it will have a significant impact on U.S. military operations if preparatory actions are not taken. (Science Magazine: Defense Chief Cites Climate Change National Security Challenge). We noted in ...

Posted in: Climate Change

The past week was not a good one for the cause of science as it relates to environmental issues and may foreshadow what might be described as an Age of Un-enlightenment.

The initial focus was on climate change. On the one hand, President Trump issued an Executive Order seeking to undo much of the Obama Administration's actions related to climate change. (March 28 Executive Order). This occurred even as the Chairman of the House Science Committee, and the Administrator of EPA acknowledged that the climate is changing and that humans play a role in that change. (House Hearing on Climate ...

Posted in: Climate Change

President Trump has proposed a dramatic cut in funding for the Environmental Protection Agency, the new EPA Administrator has suggested rollbacks in regulations, and there are even proposals to abolish the Agency entirely. Regardless of what eventually happens, changes are afoot, and they are likely to be significant.

At the outset, it's probably worth noting that, although there have been calls for the abolition of EPA, including at least one recently filed bill in the U.S. House that would do just that and shift responsibilities to other agencies (Pensacola News Journal), that ...

By almost every account, the Trump Administration is likely to alter substantially the environmental regulatory landscape. Actions have already been taken to delay the implementation of regulations as well as initiating policy changes that will likely affect the size of the Environmental Protection Agency and its budget, possibly including the portion used to provide grants to States and localities for environmental enforcement and compliance efforts. There are also already indications of change in general policy, both at the domestic level and internationally. And ...

Posted in: Regulations

On December 20, 2016, Michigan's Attorney General announced additional indictments in the Flint water crisis. The indictments against two former emergency managers and two former City of Flint executives bring to 13 the number of individuals who have been criminally charged in the fallout from a decision in 2014 to separate the City from its historic water supply source, the City of Detroit, and to begin supplying drinking water from the Flint River (N.Y. Times).

The charges are detailed, along with some history, in a press release from Attorney General Bill Schuette's office (AG ...

A recent article in The New York Times titled: Perils of Climate Change Could Swamp Coast Real Estate, indicates that rising seas and storm-related flooding in Florida appear to be driven by climate change and may be having direct impacts on the coastal real estate market (NYT Coastal Real Estate). Acknowledging that the incoming Trump administration has given new life to doubts about climate change, the article notes some actual changes in coastal areas due to sea levels and the impact of storms on local flooding not for the fact the conditions have occurred, but for the impact of the ...

The first nuclear generator commissioned in the U. S. in 20 years has begun commercial operation. The Tennessee Valley Authority brought the Watts Bar 2 Reactor on line on October 19 (The Hill). Despite the long interval between plant starts, this marks the first of five nuclear reactors under construction in the United States, all of which are expected to come online by 2020.

Worldwide, according to the World Nuclear Association, about 60 nuclear power reactors are under construction with estimates of over 160 in the firm planning stages (World Nuclear). The Association estimates ...

Posted in: Nuclear Energy

The EPA's publication of a coal ash rule on April 17, 2015, did little to resolve the debate about the proper management of the material (EPA Coal Ash Page). Members of Congress have continued to push for legislation which would change significant parts of the rule, and EPA is now being criticized by the U.S. Commission on Civil Rights for not providing sufficient protection to minority communities potentially affected by the issue.

Members of Congress have, for several years, attempted to regulate coal ash by statute even as EPA was proceeding with the very protracted process of ...

For the past three years, since 2013, energy production in the United States from renewable sources (non-nuclear) has remained fairly constant at about 9 ½% of total energy production. (U. S. Energy Information Agency report, Topic 1.1.) While the potential to expand renewable production is viewed as a potentially significant economic development opportunity, there remain some practical barriers to any substantial increase in the development of renewables. This may be compounded by the mechanism used by EPA in certain states to credit renewable use.

The International Economic ...

Posted in: Renewable Energy

Alabama has joined several other states in a petition filed with the U.S. Court of Appeals for the D.C. Circuit seeking to challenge the Environmental Protection Agency's final rule regulating emissions standards for certain oil and gas operations. (AG's Press Release). This challenge is apparently intended not only to address concerns about the rule for new and expanded projects, but also the potential that the rule will be extended to cover existing oil and gas operations. The challenge is led by West Virginia, and a copy of the Petition as filed with the D.C. Circuit can be found at ...

One of the many issues in the current Presidential campaign involves the question of whether to pursue a tax on carbon emissions. The matter has been viewed by the Clinton campaign with some interest but not commitment, while Donald Trump is opposed to the carbon tax at least on the basis that there is no science that supports the underlying idea of climate change. (The Divide on a Carbon Tax)

Interestingly, Exxon has called for support for a carbon tax and acceptance of scientific evidence of climate change (Fortune and Times-Picayune) even though the Company and allies continue to ...

Posted in: Carbon

President Obama signed a major reform of the Nation's chemical safety standards on Wednesday, June 22. The legislation amended the 1976 Toxic Substances Control Act, providing the first substantive changes in the 40-year old law. (The Hill: Obama Signs Chemical Safety Overhaul).

The amendments significantly change the authorities of the Environmental Protection Agency to evaluate chemicals and provide protection to the public. The goal is to provide more extensive and functional oversight of the chemical industry, but in a way that provides certainty to chemical ...

Certain regulated entities that operate under Clean Air Act permits are being reminded that those permits do not necessarily cover air emissions associated with the management of hazardous wastes regulated by the federal Resource Conservation and Recovery Act (RCRA) and various State counterpart statutes. RCRA regulations governing hazardous waste management include certain requirements intended to prevent fugitive emissions of hazardous air pollutants, and these can operate separate from or in addition to requirements imposed by a facility's air permit.

An EPA national ...

The coal industry has experienced substantial economic turmoil over the recent past, including bankruptcies - most recently by Peabody Energy Corporation - but also by Arch Coal, Inc., Walter Energy, Inc., and Patriot Coal Corp.

Generally, the industry and associated users of coal, have attributed these problems to the designated "War on Coal," the fashionable pejorative characterization of policies of the Obama Administration. Popular as it is among these groups to blame all the industry's woes on the Administration, this may well distract from the real cause. Business and ...

Posted in: Coal

Renewable energy investments (primarily solar and wind generation) set a record in 2015 with a collective investment of $286 billion. This according to a report from the United Nations Environment Progamme. (Climate Central News). The indication was that this amount was substantially greater than the total of $130 billion spent on fossil fuel plants last year. Moreover, much of the total is attributable to China, which has historically focused primarily on coal-fired electric generation. Similar progress was noted in the United States at the recent National Renewable Energy ...

Posted in: Renewable Energy
Flint, Michigan's problems with lead in its drinking water have been well documented, and this has prompted reports of similar problems detected in other communities, even though these are apparently not as extensive as the situation in Flint. The situation has also revealed that the current procedures to identify and evaluate lead contamination may be flawed and prompted attention to the fact that many other potential contaminants of concern are currently unregulated. Lead contamination has been documented in a surprising number of communities in addition to Flint over the past ...
The problems with the quality of drinking water in Flint, Michigan, are not necessarily an isolated collection of failures. From a technical standpoint, the potential for lead leaching into drinking water systems in many places in this country is a real issue. That potential is compounded if we see a repeat of the range of bureaucratic failures that occurred in Flint. The basic conditions that exist in Flint are not unique; they are prevalent at least in the older water systems of the Northeast and Midwest. (National Geographic). As that article points out, the potential for leaching of ...
As the New Year begins, a number of issues will compete for attention from Congress and the courts, and we may even get some final determinations about matters that have been long simmering. Much of the substantive work of the Obama Administration has been put into place and is currently subject to various challenges. Many of these will either be decided or will progress substantially during the coming year. Nonetheless, EPA has proposed a full agenda of rulemaking activities for 2016, including both projected notices of proposed rulemaking and publication of final rules for a wide ...

The third global summit on climate change has begun its meetings in Paris. Unlike the two previous summits, in Kyoto (1997) and Copenhagen (2009), there is optimism that an agreement under the auspices of the United Nations might be reached. (Paris Deal Important First Step).

This optimism apparently has its origin, in substantial part, based on an agreement between the United States and China, the two largest carbon pollution emitters in the world. Yet, while the President may have made inroads to persuading China that emissions reductions are merited, and he has also put his own ...

Posted in: Climate Change

A story in the New York Times recently portrays the ice cap in Greenland as rapidly disappearing. (NYT). Indeed, the pictures are dramatic. The story is based on experiences and observations from scientists working in the area, and it tends to support similar claims made by researchers in recent years about changing conditions in Greenland. At the same time, those who deny that global warming is occurring, or at least that it is not significantly caused by human activity, have pointed to other reasons for the reduction in the ice cap there. (Junk Science) Thus, observations are made that ...

Posted in: Climate Change
For the City of Flint, Michigan, the immediate problem is that the water it provides its citizens is not safe to drink. For many other communities across the nation, the problem may be whether they can do the things necessary to avoid a similar fate. On Thursday, October 1, local health officials in Flint declared a public health emergency warning that the City's public water supply is causing elevated lead levels in children (Water Crisis in Flint). Residents were warned not to drink the water unless it has been filtered at the tap, and the State's governor promised to provide $1 million ...

Legal challenges filed almost immediately after President Obama announced the Clean Power Rule may be premature. That is what attorneys for EPA told the U.S. Court of Appeals for the District of Columbia Circuit recently in response to an action brought by West Virginia and several other states. The fundamental issue according to EPA attorneys is that a challenge is not ripe until the regulation is published in the Federal Register, and that may not occur for several weeks. (The Hill). The particular issue raised by the petitioners is an effort to stay the effect of the Rule while the ...

On August 3, 2015, President Obama announced the finalization of the long-awaited Clean Power Plan, a policy primarily intended to further the commitment to combatting global warming. The Plan focuses on the electric power generating sector of the nation's economy, which is responsible for approximately 31% of U.S. greenhouse gas emissions (primarily carbon dioxide, fluorinated gases, and nitrous oxide). The Plan intends to reduce greenhouse gas emissions by 2030 to levels below those generated in 2005. (Washington Post ). A fact sheet provided by U.S. EPA to accompany the ...

On Monday, the U.S. Supreme Court halted further implementation of a U.S. EPA's regulation limiting mercury and other hazardous air toxic emissions from coal- and oil-fired electric power plants. In a 5-4 decision, the majority held that EPA failed to take costs into account when deciding to regulate power plants under this rule, thereby imposing substantial and costly emissions limits and control requirements on them. However, the Court did not strike down the rule, instead remanding the case for further proceedings. The Opinion can be viewed here. Members of Congress and ...
On Tuesday, May 26, 2015, EPA issued a long-awaited rule defining "Waters of the United States." The final rule is available as a prepublication version. Elsewhere, on EPA's Clean Water Rule webpage, there are a number of fact sheets and information intended to explain and support the rule as proposed. EPA apparently found this scope of detail and explanation necessary due to the significant opposition to the rule. Even before publication, the rule had generated a great deal of opposition. The proposed definition has been viewed by a number of groups as effecting a broad expansion of ...

A recent article in USA Today questions whether ethanol's days are numbered. While that article is written from the perspective of whether the stock of ethanol producing companies is a good investment, it focuses on some of the issues that frame the debate about continued support for ethanol as a fuel addictive. That use stems from a congressional mandate set out in 2005 requiring 10% of the nation's fuel to be blended with ethanol. Since over 130 billion gallons of gasoline are sold annually in the United States, that means approximately 13 billion gallons of ethanol are produced, the ...

Posted in: Ethanol
Last December, EPA announced its final rule regarding the management of coal combustion residuals ("CCR" a/k/a "coal ash"). This came several years after initial alternative proposals were offered for public comment, and the Agency's subsequent review of over 450,000 written comments. The announcement reflected a decision to regulate CCR as a non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act ("RCRA"). Such a classification had been supported by the power industry and industry groups and businesses that use coal ash in manufacturing and ...
EPA's new rules for limiting emissions of carbon dioxide for both existing power plants and proposed plants have prompted at least two substantive reports by public policy institutes focusing on the economic aspects of the proposals. The Beacon Hill Institute at Suffolk University and The Heritage Foundation have recently published reports that estimate the potential costs, particularly in terms of jobs, associated with the adoption of these regulations. These reports can be viewed here (Beacon Hill) and (Heritage Foundation). The Heritage Foundation report has apparently ...
The process of hydraulic fracturing (also known simply as "fracking") continues to divide the public and public policymakers, even as resulting lower natural gas prices have encouraged industries, including many power plants, to convert from coal-fired boilers as one means as coping with coming limitations on the emissions of carbon monoxide. Local concerns about fracking activity have their origin in concern about pollution of drinking water sources. Those concerns have now expanded to include concerns about the management of fracking fluid wastes and the possibility that ...
Expectations are running high among some that the incoming Republican majority in both Houses of Congress will act to change or eliminate various environmental regulations and statutory provisions that they claim harm the economy. Interest groups are extending these efforts to enlist State officials in opposing these regulations at that level and, for his part, President Obama has indicated an intent to use his veto authority in an effort to prevent major changes in regulation and policy. One of the foremost issues of concern on the part of many Republicans is the proposal to limit ...
The U.S. EPA's efforts to develop a new regulatory path for coal ash ("Coal Combustion Residuals" or "CCR") by regulating the material either as a hazardous waste or as a solid but non-hazardous waste, are nearing a conclusion. The deadline for EPA to announce a final decision is December 19. As we noted in February, this date was fixed by a consent decree filed in the U.S. District Court for the District of Columbia on January 29 of this year, and a press release at that time by the American Coal Ash Association provides a link to the consent decree. Statements by EPA Headquarters staff in a ...
EPA's current estimate of the completion time for a draft of its study of the risks posed by hydraulic fracturing ("fracking") to drinking water is now projected by the agency to be developed in early 2015. This is based on comments in a letter originating from EPA's Region 8 office stating that the study on the risks posed by fracking to drinking water won't reach draft final form until "early 2015". [Region 8 Letter] The study was undertaken at the direction of Congress in 2009 when Congress requested EPA to conduct scientific research to examine the relationship between hydraulic ...
Late last month, President Obama addressed the United Nations Climate Summit and just a few days ahead of that, EPA announced that it has extended the comment period on the Clean Power Plant proposed rule to December 1, 2014. [EPA extension notice and details] The proposed rule has been a lightning rod for the climate change controversy in the United States as it focuses on the effects of existing coal-fired power plants. It has also served to draw attention to efforts to move toward renewable sources of power and possibilities and pitfalls there. The proposed rule and related actions ...
A combination of factors in Alabama has raised concerns about the reliability of adequate water in various parts of the State in the event of prolonged droughts or significant withdrawals. Industrial users and public water systems would be well advised to become familiar with, and participate in, current efforts by State government and the Legislature to address these problems. Alabama has an abundance of surface stream mileage, and historically has had the water to fill those stream beds. In fact, Alabama is said to have more navigable channels than any other state. (A Treasure ...
An increasingly pitched battle between business and agricultural interests over the blending of ethanol in gasoline has turned its focus to EPA's rulemaking mandate which sets the minimum volume of renewable fuel sold annually in the U.S. This Renewable Fuel Standard (RFS) has drawn significant attention because opponents of the use of ethanol in gasoline and diesel fuels believe that there is little if any likelihood of congressional action in the near term. The EPA has proposed to reduce the volume of ethanol that must be blended into gasoline this year, while keeping the biodiesel ...

On Monday, June 22, the U.S. Supreme Court issued a much anticipated decision in Utility Air Regulatory Group v. Environmental Protection Agency (slip opinion) where it affirmed EPA's authority to impose limits for greenhouse gas (GHG) emissions by major emissions sources that are otherwise required to have a Clean Air Act permit for conventional pollutants. At the same time, the Court rejected the Agency's assertion that it has the authority to impose GHG emission limits on facilities independent of any other obligation those facilities may have to obtain permits. Thus, EPA (and ...

Our firm has recently represented clients in two projects associated with brownfields that may signal an increased willingness on the part of regulatory authorities to facilitate redevelopment of contaminated properties. As individuals and companies around the nation began to reassess the impacts of sprawl, the ability to redevelop brownfield properties provides an opportunity to make these properties productive to the benefit of the new owner directly and the community generally. One project involved the redevelopment of a portion of an abandoned automobile manufacturing ...

In March, EPA published a new Final Rule that revised a 2009 Final Rule addressing stormwater discharges from its Construction and Development (C&D) point source category. The March revision withdrew the numeric turbidity effluent limitation and monitoring requirement and made certain other changes and clarifications. (Federal Register: March 6, 2014 Federal Register) The revised rule results from litigation filed by a number of entities, Wisconsin Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and 10-1876 (7th Cir.), and specifically from a settlement ...

This past Monday (March 31), Working Group II of the Intergovernmental Panel on Climate Change (IPCC) presented its report: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Copies of the two-volume report can be viewed at the IPCC. The IPCC acts under the auspices of the United Nations and is composed of over 800 scientists and researchers from around the world who evaluate climate change data. This the IPCC's fifth such assessment since beginning in the 1990s, and it marks a significant shift from an effort to prevent or substantially limit climate change to a focus on ...

Posted in: Climate Change
We have periodically updated the status of EPA's long-running effort to decide whether and how to regulate coal ash generated primarily from electric power generation. Recent events have put EPA on a course to make a final decision and may also signal the substance of that decision. As noted previously, in 2010 EPA sought public comment on alternative proposals to regulate coal ash, one being regulation as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act ("RCRA") and the other would regulate the material as a solid, but not hazardous, waste under ...
Posted in: RCRA
Tags: coal ash, epa, rcra

On January 7, federal agencies, including EPA, published in the Federal Register the Agency's proposed regulatory agendas for 2014. EPA's agenda was generally consistent with the unified agenda published prior to Thanksgiving. EPA's agenda will propose final or substantial action on a range of issues including climate change, reforming certain chemical regulations, and updating water regulations. Many of these have long been in the regulatory pipeline. For example, EPA's rule to limit greenhouse gas emissions for new fossil fuel-fired power plants will apparently finally go ...

Posted in: EPA
Tags: epa
In mid-December, the U.S. Environmental Protection Agency issued final rules that the Agency said are intended to facilitate the management of carbon dioxide gas that is required to be captured from electric power plants. Summaries of the regulations and links to them can be found here and here. The rules are intended to support rules on carbon pollution standards for new power plants, which were published earlier this year in draft form and have not yet become final. Those draft regulations have been criticized for a number of reasons, including an assertion by industry that they ...
Posted in: Carbon, EPA, Regulations
In June, President Obama directed the U.S. Environmental Protection Agency to propose standards regulating greenhouse gas emissions ("GHG") from existing power plants. The requirements would be imposed under Section 111(d) of the Federal Clean Air Act. Under the directive, the EPA is to propose such standards no later than June 2014 using a process that would require individual states to submit plans no later than June 30, 2016, explaining to the EPA how the states will implement those standards. The prospect of these regulations is expected to focus directly on the use of coal as a ...
Posted in: EPA, Greenhouse Gas

A significant issue in the recent federal government shut down was the fundamental question over the scope of government authority and its role in a wide range of activities. In short, should there be any government involvement with respect to particular issues? While the shut down focused most directly on the federal healthcare program, similar questions have been raised both about Congressional enactments over things such as environmental protection, and the scope of those enactments as reflected by regulation. These policy and practical issues are playing out now with respect ...

In mid-September, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly submitted a proposed rule to the White House Office of Management and Budget intended to clarify which waters and wetlands are protected under the Clean Water Act. The EPA announcement of the action along with supporting information can be found on the Agency's website. The proposed rule represents these agencies' latest effort to clarify the scope of federal jurisdiction under the CWA and thereby resolve long standing uncertainty about which water bodies and activities are regulated by the law. The proposal, if adopted, would likely have its most significant impact on small streams and certain wetlands that would be determined to be hydrologically connected to and to have impacts on larger downstream waters. The draft rule is based on peer-reviewed science reflected in a draft report titled Connectivity of Streams and Wetlands to Downstream Waters. This document is a synthesis of scientific evidence on the connectivity of streams and wetlands assembled by EPA's Office of Research and Development and can be viewed here. While the proposed rule is not yet available for public comment, the draft study is. Comments will be accepted until November 6, 2013, and a three- day public meeting will be held December 16 through 18, in Washington, D.C. At least some observers believe that the proposed rule will not simply clarify CWA jurisdiction, but expand it. For example, see this from the Association of Water Agencies, and this from the Washington Post. The Agencies' action ultimately results from the U.S. Supreme Court decision Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006). That plurality decision left some uncertainty with respect to the Court's view of the scope of the CWA jurisdiction. The Court made clear that CWA jurisdiction includes, at least, traditional navigable waters, wetlands adjacent to those waters, non-navigable tributaries to traditional navigable waters where the tributary has at least continuous seasonal flow, and wetlands abutting such tributaries. However, this left open the question of jurisdiction regarding other waterbodies and the scope of that jurisdiction where applicable. Initially, EPA and Corps provided informal guidance on the scope of jurisdiction at least with respect to certain types of waters including non-navigable tributaries that are not relatively permanent; wetlands adjacent to such tributaries; and wetlands adjacent to but not directly abutting relatively permanent non-navigable tributaries. The proposed rule is intended to replace this informal guidance, and it may expand the scope of jurisdiction in the process. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Posted in: CWA, EPA
As Scott Hitch noted in a previous post, a change to the federal rule regarding All Appropriate Inquiries ("AAI") is currently on notice for public review and comment. The comment period ends on September 16. The proposed change is prompted by recent changes in ASTM's 'Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment ["ESA"] Process'. The new ASTM Standard, designated E1527-13, results from an ASTM procedure requiring it to update individual standards at least every 8 years. The new Standard replaces the ASTM E1527-05. Currently ...

Updating an ongoing issue related to options for new ash regulations, the U.S. House of Representatives passed the Coal Residuals Reuse and Management Act (H.R. 2218) on July 25, 2013. The legislation would regulate the ash from coal-fired power plants by classifying it as a solid waste under Subtitle D of the federal Resource Conservation and Recovery Act. An Associated Press report provides details. The prospect of some form of enhanced regulation of coal ash has been a contentious issue for several years. Following a 2008 breach of a coal ash impoundment operated by TVA in Kingston ...

The confirmation of Gina McCarthy to become the next Administrator of the United States Environmental Protection Agency continues to be delayed by Republicans in the U. S. Senate. A procedural "hold" has been placed on the nomination, and in addition, several Senate Republicans also point to a lack of response to several questions related to transparency at EPA. The hold, which is a courtesy procedure, allowed to each member of the Senate with respect to nominations, was placed in March by Senator Roy Blunt (R-MO) as explained in this news release posted by Sen. Blunt's office ...
The Subcommittee on Environment and the Economy of the Energy and Commerce Committee of the U.S. House of Representatives approved legislation on June 6, to direct the regulation and management of coal combustion ash residuals. As previously noted here, the issue of the proper regulation of residuals from the combustion of coal for the generation of electric power has perplexed the U.S. Environmental Protection Agency for several years. The Agency is currently evaluating over 450,000 public comments received in response to competing regulatory proposals it initially proposed ...
The Florida Legislature recently adopted a new law that allows the Florida Department of Environmental Protection ("FDEP") to establish surface water quality standards in the state. The Governor is expected to support the new law. The new law essentially approved FDEP's nutrient standards for streams, springs, lakes, and estuaries in accordance with the document entitled "Implementation of Florida's Numeric Nutrient Standards." The water quality standards primarily focus on Nitrogen(N) and Phosphorus (P) found in surface waters. The adoption of the law resolves years of ...
On June 15, 2012, EPA approved the first applications for the use of E15 Ethanol/Gasoline blend. Since that time, a dispute has emerged regarding the potential benefits and problems associated with a transition from the current standard E10 blend to E15. The situation became more focused following EPA's issuance on March 29, of proposed rules referred to as the Tier 3 Vehicle Emissions and Fuel Standards. These rules, which are proposed to become fully effective in 2017, are intended to reduce gasoline sulfur levels by more than sixty percent (60%) and reduce smog-forming volatile ...

The U.S. EPA has issued for public comment a draft of its most recent National Rivers and Streams Assessment (NRSA). The Assessment involved sampling over 1,900 points along wadeable waterways in the contiguous 48 States during 2008 and 2009, and updates a similar study done in 2004. The draft document is on EPA's website here and is summarized in a factsheet also on the website. Both documents and other information can also be accessed from EPA's webpage. Comments must be emailed to nrsa-hq@epa.gov by 11:59 p.m. May 9, 2013.

Among the key findings: 55% of the nation's river and stream ...
The costs of reducing air emissions, at least particulates, appears to be justified according to research cited during a recent lecture by environmental economist C. Arden Pope, III, a professor at Brigham Young University. An article from the Pittsburgh Post-Gazette reports Dr. Pope recounted epidemiological and scientific studies demonstrating the health and economic benefits of air pollution control regulation. Pope was speaking as part of the distinguished lecturer series at Pittsburgh Carnegie Mellon University, and he reminded the audience of early work done Lester B ...
Posted in: Air Pollution

UPDATE to previous article: EPA Confirms Uncertainty Over Timing Of Final Coal Ash Rule

As anticipated in a previous posting, President Obama has formally nominated Gina McCarthy to be the next Administrator of the U.S. Environmental Protection Agency. McCarthy brings to the position notable experience at both the state and federal levels. She joined EPA in 2009, and currently serves as Assistant Administrator for the Office of Air and Radiation. Prior to joining EPA, she served as Director of state environmental agencies in both Connecticut and Massachusetts, the latter in the ...

Previously, we referenced an article in Bloomberg BNA reporting on an interview with an EPA representative who indicated that the Agency could not provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants. EPA has now more formally confirmed this uncertainty. Recently, in announcing projected publication dates for a wide range of rules in various stages of development, EPA effectively acknowledged that there is no target date for the final rule. This is also reflected on EPA's web page which tracks the history of the ...

The U.S. Environmental Protection Agency recently announced that it has reached an agreement with the Wisconsin Builders Association, the National Association of Home Builders and others to settle litigation challenging revised standards regulating construction stormwater discharges, including a regulation establishing numerical turbidity limits. The standards were initially adopted in 2009 and then included in the Agency's final construction stormwater permit in 2012.

The Settlement Agreement, which was filed in December, addressed a number of issues raised in the ...

A recent article carried by Reuters News Service reports that President Obama favors Gina McCarthy to replace Lisa Jackson as Administrator of the U. S. Environmental Protection Agency. In December, Jackson indicated a desire to step down from the position.

McCarthy currently heads EPA's Office of Air and Radiation. Prior to going to EPA, she led State environmental agencies in Massachusetts and Connecticut. These state agency positions included her involvement with the Northeastern states' Regional Greenhouse Gas Initiative. That, coupled with her current role in air policy ...

On January 15, 2013, the U.S. Environmental Protection Agency (EPA) finalized revisions to standards to reduce air pollution from stationary engines that generate electricity and power equipment at industrial, agricultural, oil and gas production, power generation and other facilities. The final amendments to the 2010 "National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines (RICE)" reflect new technical information submitted by stakeholders after the 2010 standards were issued. According to EPA, the final amendments ...

A recent article in Bloomberg BNA reports that the U.S. EPA (Environmental Protection Agency) is currently unable to provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants. This continues a protracted rulemaking process, which has prompted an extraordinary number of public comments, approval of legislation by the House of Representatives to limit EPA's options, and litigation to force a final decision. The rulemaking history to date has been a mix of complexity, indecision, and contentiousness. It has its origin ...

It's almost never easy to fathom federal environmental regulations and this held true when a set of regulations was recently issued by the U.S. EPA. On December 20, 2012, the Agency issued a series of rules, primarily under the Clean Air Act, to address emissions from sources generally classified as boilers or incinerators. Part of the regulatory package also included revisions to standards and procedures enacted under authority of the Resource Conservation and Recovery Act ("RCRA") that will determine whether non-hazardous secondary materials constitute waste when burned in ...
As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund") was amended in 2002 to provide a defense against liability for existing property contamination for a class of purchasers who were not otherwise responsible for the condition. This is specifically referred to as the Bona Fide Prospective Purchasers ("BFPP") defense. It can be asserted to avoid liability under Superfund if a party can demonstrate its compliance with applicable ...
The Alabama Department of Environmental Management (ADEM) has apparently ended its effort to require payment of fees to review groundwater assessments and remediation plans, at least for the time being. Approximately a year ago, ADEM's Groundwater Program initiated a process attempting to require the execution of formal Remediation Agreements as a part of assessment requirements for releases which threatened or impacted the groundwater. This was prompted by recent reductions in appropriations by the State's Legislature to the Department. While much of ADEM's funding comes ...
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