Archive | April, 2012

White House Issues Hydrofracking Executive Order

17 Apr

On April 13, the White House issued an executive order entitled “Supporting Safe and Responsible Development of Unconventional Domestic Natural Gas Resources.”  For the full text of the order click here.  The Executive Order is a direct response to the ever growing number of federal, state, and local agencies that are regulating or contemplating the regulation of hydrofracking.  The order creates an interagency working group, chaired by the Director of the Domestic Policy Council, lists 13 federal agencies that will be represented on the task force, and allows the Chair to appoint members of other agencies as needed.  The task force is charged with coordinating agency policy and information exchange as well as promoting interagency communication with stakeholders.  That being said, the task force does not have any regulatory authority itself.

If you have any questions regarding the interagency working group or hydrofracking, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Illinois’ Leaking Underground Storage Tank Fund receives $50M injection

16 Apr

Illinois’ Leaking Underground Storage Tank (LUST) Fund has been in the red for several years, but earlier this year Illinois infused the fund with $50M in order to pay off outstanding claims and put the fund in the black to the tune of ~$16M.  The LUST Fund also receives money from a motor fuel tax and an environmental impact fee.

LUST Funds may be dispensed to cover cleanups of motor fuel (as defined in the Motor Fuel Tax Law), aviation fuel,  heating oil, kerosene and used motor vehicle oil (as defined in the Motor Fuel Tax Law).  An applicant must pay a deductible that varies from $10,000 – $100,000 depending primarily upon the date on which the USTs were registed with the Fire Marshal’s Office.

The requirements for the tank pull itself vary depending upon the date on which the UST owner or operator reported the release.  New releases (i.e., those reported after June 24, 2002) are handled under 35 IAC 734.  However, older releases which were reported, but not remediated, may be remediated under Part 731 (reported prior to September 13, 1993) or Part 732 (reported after September 13, 1993 and before June 24, 2002).

If you have any questions regarding remediating leaking underground storage tanks or the LUST Fund, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Underground Storage Tanks and the Office of the State Fire Marshal

11 Apr

Underground Storage Tanks (USTs) are regulated under Subchapter IX of the Solid Waste Disposal Act (SWDA), as amendeded by the Resource Conservation & Recovery Act (RCRA).  Most states, including Illinois, have a delegated program.  Illinois’ program is not run by the Illinois Environmental Protection Agency, instead it is run by the Office of the State Fire Marshal (OSFM).  Both the OSFM and US EPA conduct inspections and issue field citations, Notice of Violations (NOVs), and Administrative Orders.  If the OSFM wishes to pursue formal enforcement it must refer the matter to the Attorney General’s office.  In contrast, US EPA may pursue an administrative enforcement case “in house” and can assess significant penalties according to its penalty guidance for UST violations.  The penalty guidance instructs UST inspectors on how to assess a violation based upon the extent of deviation from the requirements and the potential for harm.  Many violations are assesses on a per tank violation (e.g., line leak protection or cathodic protection) while paperwork violations are typically assessed on a per facility basis.  The penalty guidance also instructs inspectors to take into account violator specific issues such as the company’s degree of cooperation, degree of negligence and history of noncompliance.  The first two categories can be used to adjust a penalty upward or downward, while the history of noncompliance can only be used to adjust a penalty upward (in other words the agency will never reduce a company’s penalty simply because they have previously complied with the law, that is expected).

If you have any questions regarding underground storage tanks and the State Fire Marshal, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

How are greenhouse gas emissions from stationary sources regulated under the Clean Air Act?

10 Apr

Whenever someone asks why greenhouse gases are regulated under the Clean Air Act the automatic answer is “because the Supreme Court said so in Massachusetts v. EPA.”  While that is true, it takes additional steps to explain why greenhouse gas (GHG) emissions from stationary sources are regulated under the Clean Air Act.  After all Massachusetts v. EPA was a case involving mobile sources under Title II of the Clean Air Act and not stationary sources under Title I of the Clean Air Act.  Ultimately, the answer is found in the EPA’s regulatory definition of a regulated new source review pollutant.  As defined in the code of federal regulations, a regulated NSR pollutant is a 1) a criteria pollutant for which a NAAQS has been established, 2) a pollutant subject to a standard under Clean Air Act Section 111 (new source performance standards, NSPS), 3) a pollutant regulated under Title VI (stratospheric ozone protection),  and 4) ” any pollutant that otherwise is subject to regulation under the Act.”

The Supreme Court in Massachusetts v. EPA required EPA to determine under CAA Section 202(a) whether GHGs from automobiles caused or contributed to air pollution which endangered public health or welfare.  On December 9, 2009, EPA determined that six individual GHGs and classes of GHGs endangered human health and welfare, and determined that automobiles released four of these six GHGs.   Pursuant to this determination, EPA promulgated light duty truck standards and heavy duty truck standards in May of 2010 and August of 2011, respectively.  Having passed these standards, GHGs were now “pollutant[s] subject to regulation under the Act” and now subject to regulation under NSR.  That being said, these standards were written to cover production years 2012-2016 for light duty vehicles and 2014-2018 for heavy duty trucks.  Presumably, if these standards were not extended or not rewritten to include GHGs, GHGs would no longer be regulated under NSR.

If you have followed recent US EPA proposed regulations, you may remember that EPA has proposed new source performance standards (NSPS) for utilities that cover GHGs (see our recent blog entry).  While, arguably, the best demonstrated technology standard for NSPS is not extremely onerous, promulgating a NSPS that regulates GHGs provides yet another hook for EPA to regulate GHGs since the definition of a regulated NSR pollutant includes a pollutant subject to Clean Air Act Section 111 (NSPS).  In other words, EPA appears to be reinforcing its authority to regulate GHGs under NSR.

If you have any questions regarding GHGs or the Clean Air Act, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

PCB landfill permit case dismissed

6 Apr

A lawsuit filed against Peoria Disposal, the parent company of Area Disposal, has been dismissed by a Moultrie County judge.  Area Disposal had sought permission and received approval from  to use 22.5 acres at the landfill for disposal of industrial wastes, including polychlorinated biphenyls (PCBs).  Studies in animals have shown that PCBs can cause cancer as well as other impacts on the endocrine, reproductive, immune and nervous systems.  Local citizens have been concerned about the proximity of the site to the Mahoment Aquifer.  The suit claimed that county ordinances and state and federal statutes and regulations were violated.  Waste disposal is regulated by both local zoning ordinances and the federal Solid Waste Disposal Act (SWDA) which is also referred to by the name of its later 1976 amendment, the Resource Conservation and Recover Act (RCRA).  Solid waste disposal is reguated under Subtitle D of the act and is implemented by the Illinois Environmental Protection Agency with relatively limited federal oversight.  Hazardous waste, including PCBs, are regulated under Subtitle C of the act.  The hazardous waste program is also implemented by IEPA, but there is more federal oversight, including a very active inspection and permitting program run by US EPA.

If you have any questions regarding PCBs, or waste disposal under SWDA and RCRA, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Hydraulic fracturing in Illinois

5 Apr

The potential environmental damage, primarily groundwater contamination, from capturing natural gas through hydraulic fracturing (aka hydrofracking and fracking) has captured national media attention.  Most of that attention has been focused on current events in Pennsylvania, although the Marcellus Shale present in Pennsylvania also extends under New York, Ohio and West Virginia.  That being said, hydraulic fracturing was utilized previously in numerous other western states such as Texas, Utah, Wyoming and Colorado.  Now it appears that there is the potential for hydraulic fracing to occur in downstate Illinois where the New Albany shale formation is located as oil and gas companies are currently moving to secure mineral leases on properties over this formation.

Hydraulic fracturing utilizes custom blends of water and various chemicals, the exact formulation of which are closely guarded secrets.   When injected under high pressure the fracking fluid cracks the bedrock such that otherwise trapped natural gas can escape and be collected.  Environmental concerns have revolved primarily around groundwater contamination by the natural gas or the fracking fluid and the disposal of fracking fluid.  One of the more notable claims of groundwater contamination was shown in the documentary Gasland in which tapwater was ignited.  The exact source of the natural gas in well water can be difficult to determine.  Shale and coal formulations can have naturally occuring methane (one only needs to consider the number of explosions in underground coal mines).  Often the methane is produced by naturally occuring methanogen bacteria.

In 2005, Congress amended the Safe Drinking Water Act to exclude from regulation “the underground injuect of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”  However, the change in political climate as well as the extension of fracking to the eastern U.S. has put hydrofracking under renewed scrutiny.  On the federal level, a US House of Representatives Committee on Energy and Commerce Minority report released in April 2011, Chemicals Used in Hydraulic Fracturing, concluded that 650 of the fracking fluid products contained chemicals that are known or possible human carinogens, regulated under the Safe Drinking Water Act, or listed as hazardous air pollutants.  US EPA is undertaking a scientific study with initial results in 2012 and an additional report due in 2014.  Many state and local governments are not waiting for federal oversight.  Instead, they are implementing their own statutes and regulations to ban or regulate the practice.

If you have any questions regarding hydrofracking or hydrofracking in Illinois, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Greenhouse Gas Performance Standards for New Stationary Sources

4 Apr

On March 27, 2012, Lisa Jackson (the EPA Administrator) signed a notice that the agency will propose a new rule to implement Greenhouse Gas (GHG) performance standards for new electric utility generating units which the agency has dubbed a “Proposed Carbon Pollution Standard for New Power Plants.”  The proposed regulation has not yet been published in the Federal Register and, thus, the notice period for comments has not commenced.  That being said, EPA has already made the draft language publicly available as well as provided summary fact sheets.

As noted above, the rule would only apply to new plants and would not apply to currently operating and newly permitted plants that begin construction over the next year.  Furthermore, the plant would only apply to fossil-fuel electrical utility generating units (EGUs), inlcuding fossil-fuel-fired boilers, integrated gasification combined cycle units and stationary combined cycle turbine units that generate electricity for sale and are larger than 25 megawatts.  Thus, EGUs burning other fuels, such as biomass would not be regulated under this rule.

EPA is considering an output-based standard of 1,000 lbs of CO2 per megawatt-hour.  The agency notes that approximately 95% of new natural gas combined cycle power plants already meet this standard without additional emissions controls.  Power plants utilizing coal would require some sort of carbon capture and storage, although this would not impose an additional burden upon utilities in states that already include carbon capture and storage (including Montana and Illinois).

In order for facilities to implement and optimize their control technology, EPA is proposing to allow facilities to use their 30-year average CO2 emissions to determine compliance.  Utilizing a 30-year average instead of an annual standard would allow new facilities time to tweak the performance of their equipment since initial emissions exceedences could be offset by subsequent compliance.

If you have any questions regarding the Proposed Carbon Pollution Standard for New Power Plants or other environmental regulation of utilities, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Uranium: A new issue for Coal Ash Ponds and Coal Combustion Residue?

3 Apr

Coal Combustion Residues (CCR) have received a lot of bad press over the past few years, despite many beneficial uses, and it may be getting worse.  CCR covers the variety of by-products from coal burning electric utilities, including flue gas desulfurization, coal slag, bottom ash and fly ash.  CCR is often beneficially reused.  For example, CCR can be added to concrete, simultaneously creating a more durable product and reducing the amount of Portland cement required.  This is environmentally beneficial because 1) the product is more durable, 2) the CCR does not have to be disposed of in a landfill or impoundment, and 3) less Portland cement, the production of which has negative impacts on the environment, is needed.  Likewise, FGD gypsum, which is generated from the scrubbing process at coal-fired power plants, can be used in lieu of naturally occuring rock gypsm for drywall.  In fact, over half of the drywall in the US is made this way, again saving disposal space.  Unfortunately, not all CCR is beneficially reused and much of it is diposed as a solid or as a slurry in an impoundment.

The disposal practices for CCR, especially in slurry impoundments, have come under increasing scrutiny because of several accidents over the past few years. The most notorious event occured on December 22, 2008, when a CCR surface impoundment was breached at the TVA Kingston Fossil Plant in Tennessee which released 5.4 million cubic yards of coal ash.  The spill covered over 300 acres, impacted over two dozen residences, and TVA estimated the cleanup will cost in the range of one billion dollars.  EPA has worked to determine which surface impoundments pose the greatest threat and published a report in the summer of 2009.

A second issue, albeit one that garnered less press, with CCR disposal has revolved around the potential for ground water contamination.  CCRs can contain several heavy metals such as asenic, selenium, cadmium, lead, and mercury.  While these metals are present in low concentrations, impoundments contain such a large volume of CCR that the mass balance of these metals arguably can be significant.  In addition, most of these impoundments are unlined and, thus, increase the likelihood that these metals will enter the groundwater.  In order to address this issue, EPA’s proposed rule for CCR include liner and monitoring requirements.  That rule will not be finalized until 2013 and most likely wouldn’t be fully implemented for several years after that.

A recent article (Read the article here) raises the specter that Uranium groundwater contamination may be another risk posed byCCR surface impoundments and is an excellent example of the potential negative press and legal exposure that a utility can receive because of a surface impoundment.  In this case the Georgia Power Plant Schere maintains a 900-acre impoundment and the residences in the area rely upon well water.  According to the article, the residents are experiencing a variety of ailments and cancers.  Testing has indicated that many of their wells contain high levels of uranium.  Furthermore, the article alleges that coal ash has been documented as having significant levels of uranium (a fact which I am attempting to, but as of this moment have not, verified).  A direct cause-and-effect has not been established between the surface impoundment and the residents’ illnesses, and the article notes that EPA believes a naturally occuring source of Uranium may be the source for the wells.  Nevertheless, the mere presence of the surface impoundment has raised the issue.

If you have any questions regarding coal combustion residues, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Cross-State Air Pollution Rule (CSAPR)- Where do we stand?

2 Apr

Air pollution has a nasty habit of not respecting state lines.  Given that winds blow primarily from west to east in the United States, much of the pollution from the MidWest and the Great Plains ends up having an impact upon the East Coast.  The Clean Air Act was drafted with this in mind and contains the “good neighbor” provision in Section 110.  CAA Section 110(a)(2)(D)(i)(I) states that a state implementation plan (SIP) must:

“contain adequate provisions… prohibiting… any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will… contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard”

Needless to say, this creates a hotly contested issue where MidWest and Great Plains states and their respective economies are potentially put at risk for the benefits of people located on the East Coast.  As a result, any effort by US EPA to implement the good neighbor provision by proposing interstate transport regulations elicits significant commentary and inevitably litigation.  Over the course of a single year, August 2010 until August 2011, US EPA proposed and finalized the Cross-State Air Pollution Rule to replace the previous Clean Air Interstate Rule (CAIR) which had been remanded from the D.C. Circuit to EPA for revision.  CSAPR was immediate contested in court for a variety of reasons that will be discussed in this blog later this month.  On December 30, 2011, the D.C. Circuit stayed CSAPS pending judicial review.

The stay was not a judgment on the merits, instead the stay temporarily halted the implementation of CSAPR and reinstated CAIR until the court had the opportunity to review whether the administrative process for noticing CSAPR as well as the actual substance of CSAPR is valid.  On January 18, 2012, the D.C. Circuit issued a briefing schedule for the matter, setting dates for all briefs to be submitted by the parties while stating that oral arguements will be scheduled at a later date.  The final briefs for both parties were due March 16, 2012.

If you have any questions regarding CSAPR, CAIR, or interstate air pollution, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.