Energy & Environmental Law Adviser

Powhatan Forcefully Responds to FERC’s Order to Show Cause

Posted in Regulatory

On February 2, 2015, Powhatan Energy Fund, LLC, HEEP Fund, Inc., CU Fund Inc., and Houlian (Alan) Chen (jointly Respondents) filed answers to the December 17, 2014, Order to Show Cause and Notice of Proposed Penalty (Order) issued by the Federal Energy Regulatory Commission (FERC). FERC required Respondents to show cause why they should not be found to have violated section 1c.2 of the Commission’s regulations and section 222 of the Federal Power Act (FPA) by engaging in fraudulent Up To Congestion (UTC) transactions in PJM Interconnection L.L.C.’s energy markets. The Order also directed the Respondents show cause why they should not be required to disgorge profits and be assessed civil penalties in the following amounts: Continue Reading

Ohio Supreme Court Invalidates Local Fracking Restrictions

Posted in Natural Gas

On Monday, February 16, 2015, a sharply divided Ohio Supreme Court held in a 4-3 decision that Ohio local governments do not have authority to enact certain local zoning ordinances restricting hydraulic fracturing. The Court found that an Ohio statute regulating oil and gas well production operations that gives state government “sole and exclusive authority” to regulate such operations does not allow for a municipality to impose its own permit requirements on oil and gas drilling operations. Continue Reading

CERCLA Displaces Common Law Nuisance Claims

Posted in CERCLA

For the first time, a court has held determined that CERCLA, by itself, is sufficient to displace a federal common law nuisance claim for damages. In a January 5, 2015, decision, the United States District Court for the Eastern District of Washington dismissed federal common law public nuisance claims brought by a group of residents seeking damages for personal injury allegedly caused by the release of hazardous substances from the defendant’s metal smelter and fertilizer manufacturing facility. Anderson v. Teck Metals, Ltd., No. 13-420 (E.D. Wash. Jan 5, 2015). The court held the plaintiffs’ claims were displaced by CERCLA.

The plaintiffs alleged that hazardous emissions from defendant’s facility traveled to and settled into the Upper Columbia Valley, where the plaintiffs lived, and caused the plaintiffs to suffer from various ailments. Defendants argued that the plaintiffs’ federal common law public nuisance claims were displaced by CERCLA, which already addresses the release of hazardous substances. In a different, earlier action, the 9th Circuit had ruled that CERCLA applied to hazardous substances from defendant’s facility that were released into the Upper Columbia Valley. The Upper Columbia Valley is a federal Superfund site for which a Remedial Investigation and Feasibility Study is currently in progress. The plaintiffs argued their claims were not precluded because CERCLA does not include any provisions that address personal injury.

The court, relying on 9th Circuit precedent and the Supreme Court’s decision in Connecticut v. Am. Elec. Power Co., Inc., 131 S.Ct. 2527 (2011), noted that the appropriate test for whether a federal public nuisance claim is displaced by federal statute is whether the “statute speaks directly to the question at issue.” Contrary to the plaintiffs’ assertions, the court explained, the question at issue was not whether the defendant could be held liable for personal injuries caused by the release of hazardous substances. The court relied on the Supreme Court’s conclusion that “the type of remedy asserted is not relevant to the doctrine of displacement.” The court, therefore, concluded that “the fact [that] CERCLA does not provide damages remedy for personal injuries is irrelevant to whether CERCLA displaces and precludes Plaintiffs’ federal common law nuisance claims.” The court determined the true “question at issue” was liability for the release or threatened release of hazardous substances, which is covered by CERCLA. The plaintiffs were, therefore, precluded from bringing their federal common law public nuisance claims.

Upcoming Panel Discussion on the EPA CCR Regulation at the ACAA 2015 Winter Meeting

Posted in Events

Schiff Hardin partner Josh More will be on a panel to discuss the EPA CCR Regulation during the American Coal Ash Association 2015 Winter Meeting on Feb. 10.  The panel will cover how EPA’s new Coal Combustion Residual Rule could impact the beneficial reuse market.

Mr. More is a member of Schiff Hardin’s Environmental and Litigation Groups. His practice includes civil litigation, compliance counseling, regulatory advocacy and transactional support. He has extensive experience handling coal ash management issues, including beneficial use programs and remediation and closure of coal ash ponds.

The American Coal Ash Association 2015 Winter Meeting will be held Feb. 10-11, 2015 at the Savannah Marriot Riverfront (Savannah, GA). Additional information and registration is available here.

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