Environmental Law Blog

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.

Ethanol gas standard in jeopardy?

7 Sep

This summer’s drought has caused livestock feed prices to soar and livestock producers are feeling the heat on their bottom lines as well.  In order to lower feed prices, producers are asking the U.S. EPA to waive the Renewable Fuels Standards, which requires 13.2 billion gallons of ethanol to be added to gasoline this year.  If past years are any indication, they shound not expect any action from the agency.  For example, in 2008 the EPA did not issue a waiver even though corn prices rose due to increased fuel, fertilizer and other costs.

If you have questions about the Renewable Fuels Standard, 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.

So you think you know what is biomass?

5 Sep

At its most basic level biomass is usually considered organic material that may be burned to generate heat/electricity or converted to a liquid or solid fuel.  Biomass may be plant material: crops grown specifically to be a fuel (e.g., switchgrass and various prarie grasses); “waste” components of a plant (e.g., corn stover or sawdust); or plant derived products that no longer serve their original purpose (e.g., waste pallets or wood from demolished building stock).  Biomass may also be animal waste, aquatic plants or municipal wastes.

Anyone contemplating a biomass project is most likely doing so with the intent of receiving (state or federal) funding or inclusion in a certain government program and should pay attention to how biomass is defined in that program.  On the federal level alone, biomass has over a dozen different definitions and several statutes actually have multiple definitions (the Energy Policy Act of 2005 has 6 different definitions).  These statutory definitions include and exclude various of the above mentioned biomass categories.  Several of the federal statutes also distinguish between biomass located on federal and private lands. 

Biomass energy also faces an uncertain future as US EPA determines whether to consider biomass energy as carbon neutral.

If you have questions about biomass and whether your project complies with a specific program, 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.

Section 1603 Cash Grant Application Tips

5 Sep

Section 1603 of the American Recovery and Reinvestment Act provides a cash grant in lieu of ITC or PTC for renewable energy projects put into service on 2009, 2010 and 2011 or which commenced construction in 2009, 2010, or 2011.  The deadline for applications is the end of this month.  Needless to say “put into service” and “commenced construction” are both terms which the Treasury Department has fleshed out in respect to Section 1603 or during the course of other programs.

Here are some tips to maximize the likelihood of having a successful application and minimizing the stress of completing the paperwork:

1) Check both the actual phyiscal construction and 5% construction commencement boxes even if you are not absolutely sure you can support the claim at this time.  The Treasury Department will follow up for further information if your submission is incomplete, but the Treasury Department will not let you retroactively amend your application to check both boxes.

2) The 4B Narrative Box unnecessarily scares many applicants.  There are no magic words and the information included in the narrative box does not directly contribute to the success of an application.  The Treasury Department can use the information to help it get a better sense for the overall project, but the primary purpose appears to be to provide the department with descriptions of successful projects for agency reports.  Treasury officials have also recommended applicants include any other unique information about the project that cannot be included anywhere else.  

3) You do not need a SAM account to apply (the Treasury Department has been experiencing technical glitches with SAM as they migrate to a new system) for a Section 1603 Cash Grant.  You do need a SAM account to receive the grant once it is awarded.

4) If you do not receive your full award, you may choose to refuse the grant and opt for the ITC instead.

If you have questions about Section 1603 cash grant applications, 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 Benefit Corporation Law passed but not yet effective

5 Sep

Governor Quinn signed the Benefit Corporation bill on August 2, 2012 (Public Act 97-0885).  The new law does not go into effect, however, until January 1, 2013.

Benefit Corporations, also known as B Corps, are a new type of corporation in Illinois which actively adopt a general public benefit or one or more specific public benefits as a corporate goal (or a combination of a general and specific goals).  Legally speaking, this allows B Corps to pursue purposes other than maximizing profits without fear of a shareholder derivative lawsuit and, u nlike L3C s, a B Corp still make significant profits.  From a public relations standpoint, it allows a business to attract like-minded consumers.

The statute places ongoing reporting responsibilities on Benefit Corporations which are undertaken by a Benefit Director and a Benefit Officer.  The statue also creates a “benefit enforcement proceeding” as a means of making sure the general or specific goals of the B Corp are met.

If you have questions about B Corps, wish to create a B Corp, or wish to conert your existing business to a B Corp, 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.

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.

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