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New federal Underground Storage Tank (UST) rules in 2013

24 Jun

Over five years ago US EPA initiated a rule making to update its underground storage tank (USTs) regulations to reflect changes in technology since the rules were issued in the late 1980s and to reflect the requirements of the Energy Policy Act of 2005 (EPAct) in Title XV, Subtitle B.  Many of the updates involve changes to employee training, secondary containment requirements for tanks and piping, adding operation and maintenance requirements, and adding new leak detection and prevention technological requirements, among other updates.  US EPA currently projects that it will publish the final rule in the Federal Register in December 2013.

If you have questions about UST regulations, 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.


D.C. battle over EPA Administrator nomination & the future of the D.C. Circuit

10 Jun

Gina McCarthy was nominated to take over as US EPA Administrator over three months ago. Last month her nomination passed out of the Senate Environment and Public Works Committee to the full Senate for a vote. Needless to say, the leadership of EPA is a source of contention between Republicans and Democrats. As a result Republican senators have been delaying McCarthy’s confirmation vote.

Another set of less obvious nominations that may have even more significant environmental repercussions was made last week. President Obama nominated Robert Wilkins, Nina Pillard, and Patricia Millett for the US D.C. Circuit Court of Appeals. Since federal agencies are typically sued over proposed regulations in the D.C. Circuit, the D.C. Circuit is a prime battleground for US EPA regulations. In fact, these appointments may be especially important as federal judges are appointed for life, unlike agency administrators who typically last only as long as the President who nominates them, if that long. The judges whose change to Senior Status in the Court of Appeals created two of the three vacancies served for 25 and 26 years. The third vacancy was created when John Roberts was elevated to the Supreme Court. Currently, the D.C. Circuit has four judges selected by Republic Presidents (three judges selected by George W. Bush and one by George H.W. Bush and four judges selected by Democratic Presidents (three by Bill Clinton and one by Barack Obama).

If you have questions about these appointments or how to make your voice heard, 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.

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.

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.

Brownfield cleanup tax credit passes Illinois Senate (SB 3212)

29 Mar

The Illinois Senate has passed Senate Bill 3212 and the bill has now moved to the House.  SB 3212 creates a state income tax credit for projects in the IEPA’s Site Remediation Program which are approved by local authorities and will “create at least 10 new jobs, retain 25 jobs, or a combination thereof.”  75% of the credit can be taken in the year the credit is initially approved and the remaining 25% can be taken once a No Further Remediation (NFR) letter is received, although the Department of Commerce and Economic Opportunity will have the authority to withhold the remaining 25% until the required jobs are created and documented.  Parties responsible for the pollution are not allowed to receive the income tax credit.

Senate Bill 3212

If you have any questions regarding SB 3212 and brownfield remediation, 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.

What to do when EPA has sent you a violation notice.

31 Aug

During the course of my environmental practice, both at EPA and in private practice, I’ve seen too many regulated companies mishandle a violation notice, notice of violation, or finding of violation (terminology varying by agency and the division of an agency).  Companies have failed to respond, have provided an incomplete response, or have provided inaccurate information.  I have seen all of these permutations lead to administrative penalties (and associated legal and consulting costs) when no penalty was necessary.

Many regulated companies are under the mistaken impression that a violation letter is the end of the enforcement process.  That is incorrect.  In truth, EPA is still in the information gathering stage and has not made a decision whether to pursue an administrative penalty.  In addition, the agency enforcement team has a significant amount of enforcement discretion in determining whether the violations observed during an inspection warrant formal enforcement (i.e., a penalty).  Thus, the response to the violation notice is of crucial importance to the agency’s decision whether to pursue enforcement and should be treated as such.

Due to the significant legal and financial impact stemming from the response to a violation notice, this is the optimal time to engage an environmental attorney.  As an environmental attorney, we are best suited to understand how given facts do or do not constitute violations and can word responses most appropriately.  Furthermore, as a former EPA attorney, I have an excellent sense for how the agency decides to pursue formal enforcement and for which violations the agency decides to pursue a significant penalty.  As a result, I can tailor a response to a violation notice such that it minimizes the risk of formal enforcement.

If you have any questions regarding EPA violation notices, 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.



EPA proposes to exempt captured CO2 storage from hazardous waste regulations

17 Aug

Under a recent proposed rulemaking, EPA has manifested its intent to exclude captured and sequestered CO2 from regulation under the Resource Conservation and Recovery Act (RCRA). Assuming that the CO2 injection wells meet stringent conditions, EPA concluded that the sequestered carbon would not pose a risk to human health or the environment. The rulemaking falls under the interagency task force on carbon capture and storage (CCS), which was developed to provide a consistent national framework for CCS development.

Injection wells will still be regulated under the Safe Drinking Water Act (SDWA). In another recently finalized rule, the EPA designated a new class VI of underground injection wells. The permitting process for Class VI wells is intended to insure that the wells are properly sited and will not pose a threat to the environment or nearby drinking water sources. Overall, this represents fewer regulatory barriers for a CCS developer. (more…)

Stephen Thorn joining Chicago-Kent as adjunct law professor

30 Jul

Stephen Thorn is joining the Chicago-Kent School of Law as an Adjunct Law Professor.  He will be teaching the Advanced Legal Writing: Environmental Law course.