Energy & Environmental Law Adviser

Eastern District of Washington Holds that Contamination Caused by Direct Aerial Emissions May be Actionable Under CERCLA

Posted in CERCLA, Water

In Pakootas v. Teck Cominco Metals, LTD, Plaintiffs filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a Canadian mining company for disposing of slag and hazardous substances into the Upper Columbia River (UCR) and Lake Roosevelt, both in the U.S., where Plaintiffs fish, hunt and recreate. Pakootas v. Teck Cominco Metals, 868 F. Supp. 2d 1106 (E.D. Wash. 2014). Plaintiffs alleged that the materials were directly emitted from Teck’s smelter located in British Columbia, Canada.  Continue Reading

Obama Administration Announces Plan to Cut Methane Emissions

Posted in Natural Gas, Regulatory

The Obama Administration (Administration) on January 14, 2015 unveiled new plans to regulate methane emissions from the nation’s oil and natural gas sector.  Specifically, it announced a new goal to cut methane emissions from the sector by 40 – 45 percent from 2012 levels by 2025. Continue Reading

Illinois’ New Hydraulic Fracturing Rules Webinar

Posted in Events, Natural Gas

Schiff Hardin partner Daniel J. Deeb will present during “Illinois’ New Hydraulic Fracturing Rules,” a webinar hosted by Schiff Hardin. Mr. Deeb will address the primary issues to consider when preparing and defending an application filed under the Illinois rules. Lawrence L. Fieber of Burns & McDonnell Engineering Company, Inc. will also present.

Mr. Deeb, a member of Schiff Hardin’s Environmental Group, represents oil and gas clients in civil litigation, administrative proceedings, permit negotiations and business transactions. He is a frequent speaker on hydraulic fracturing and recently helped successfully defend a client in federal district court against claims that its wells were impacted by hydraulic fracturing and gas storage activities (Magers v. Chesapeake Appalachia, LLC, No. 5:12-cv-49 (N.D. W. Va. Sept. 2, 2014)).

The webinar takes place Wednesday, January 21, 2015. Registration and additional information can be found here.

EPA Expands the Definition of Solid Waste Rule

Posted in Land/Waste, Regulatory

The United States Environmental Protection Agency (EPA) is cracking down on alleged sham recycling with the issuance of a final “Definition of Solid Waste” Rule. The rule aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste, Pre-Publication version (Dec. 9, 2014) (to be codified at 40 CFR Parts 260 and 261) (the Rule). The 2008 rule exempted hazardous secondary materials that would be reclaimed from the definition of solid waste. Doing so, according to EPA, effectively de-regulated 1.5 million tons of materials, such as arsenic, benzene, trichloroethylene, lead and mercury. Environmental groups and EPA claim that the deregulation resulted in third-party recyclers over-accumulating materials, increasing the risk of accidents and environmental releases. Consequently, the Rule redefines certain materials as hazardous waste and implements stricter controls on facilities and processes. Continue Reading

EPA Regulates Coal Combustion Residuals from Coal-Fired Power Plants as Subtitle D Solid Waste

Posted in Land/Waste, Regulatory

On December 19, 2014, the U.S. Environmental Protection Agency (EPA) issued a 745-page prepublication version of its final rule governing the landfill and surface impoundment management of coal combustion residuals (CCR) from coal-fired power plants. The rule is to become effective six months from the date of its publication in the Federal Register (expected to occur by the end of the year). Important features of the rule include the following:

  • Ending several years of speculation whether EPA would attempt to regulate CCR as a hazardous waste under the Resource Conservation and Recovery Act (RCRA) Subtitle C’s “cradle to grave” regulatory scheme, the final rule instead re-affirms EPA’s prior regulatory determinations (EPA’s 1993 and 2000 Bevill regulatory determinations) and regulates CCR as a solid waste under RCRA Subtitle D.
  • According to its preamble to the rule, EPA does not have the authority to enforce the requirements of the rule.  Instead, EPA will rely on states and the public to enforce the requirements of the rule through citizen suits. In addition, EPA (or others) may take action under RCRA if the management of CCRs gives rise to “an imminent and substantial endangerment”. To facilitate state and citizen oversight and enforcement, the rule requires owners and operators of CCR landfills and surface impoundments to certify compliance and provide state agencies and the public with information regarding compliance.
  • The rule will not be implemented through a federal or state permitting program.  The rule is self-implementing, meaning it sets “minimum” federal criteria which facilities must comply with without engaging state or federal agencies. States are not required to adopt regulations, develop a permitting program, or submit a program to EPA for approval. Instead, EPA is strongly encouraging states to voluntarily implement the requirements of the rule through amendments to their Solid Waste Management Programs. Continue Reading

EPA Startup, Shutdown and Malfunction Event Rules Are Changing

Posted in Air

EPA continues to change startup, shutdown and malfunction (SSM) conditions throughout the Clean Air Act regulatory scheme.  The changes are a direct response to a number of petitions and court cases brought by environmental groups over the last several years. Continue Reading

D.C. Circuit Issues Opinion on Jurisdiction Under Section 210 of PURPA

Posted in Electric, Regulatory

On December 2, 2014, the D.C. Circuit issued its decision in Midland Power Cooperative and National Rural Electric Cooperative Association v. Federal Energy Regulatory Commission, No. 13-1184, finding that it does not have jurisdiction to review Federal Energy Regulatory Commission (FERC) decisions under Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA)Continue Reading

FERC Approves Fourth Settlement for 2011 Southwest Blackout Against Western Area Power Administration

Posted in Electric, Regulatory

On November 24, 2014, FERC approved a settlement with Western Area Power Administration – Desert Southwest Region  (Western-DSW) related to its involvement in the blackout in the southwestern U.S. on September  8, 2011.  This blackout left more than 5 million people in Southern California, Arizona, and Baja California, Mexico without power for up to 12 hours.  According to FERC’s press release on the Western-DSW settlement, this is the fourth settlement arising out of this blackout. Continue Reading

FERC Orders RTOs and ISOs to Report on Fuel Assurance

Posted in Electric, Regulatory

On November 20, 2014, FERC issued an order requiring regional transmission operators (RTOs) and independent system operators (ISOs) to file reports describing their efforts with respect to fuel assurance. The order defines “fuel assurance” as involving generator access to fuel supplies and the firmness of generators’ fuel arrangements and notes that lack of fuel assurance has been identified as a contributing factor in poor generator performance and inefficient market outcomes. Continue Reading