Environmental & Land Development Blog
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This blog is a service of Alston & Bird's Environmental and Land Development team and focuses on key environmental compliance, litigation and land development issues. Our lawyers are experienced, creative and credentialed and have a proven record of tackling these issues, supporting a range of businesses and industries across the country.

More Gluten-Free Micro-Brews in our Future?

The U.S. Food and Drug Administration (FDA) issued a Final Rule last August establishing a federal standard for “gluten-free” labeling of foods. That standard went into effect on August 5, 2014, except for fermented and hydrolyzed foods (such as beers made from gluten-containing grains, malt vinegars, and soy sauce). FDA said it would address a gluten-free standard for those products in a separate rulemaking commencing later this year because the agency at that time was not aware of a scientifically valid test method that could accurately quantify the gluten content of fermented foods. FDA issued a notice earlier this summer indicating a Proposed Rule is forthcoming and awaiting internal agency clearance, followed by HHS intra-departmental review, and (potentially) review by OMB, before publication.

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California Supreme Court: Granting License to Ignore CEQA?

August 14, 2014 | Posted by Maureen Gorsen | Topic(s): Land Use, Environmental Review (CEQA/NEPA), Litigation

The California Supreme Court recently issued a ruling in the case of Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart), which raised the question does the California Environmental Quality Act (CEQA) apply to local voter initiatives if the government adopts the initiative without placing it on the ballot for a special election. Tuolumne Jobs & Small Business Alliance (TJSBA) filed the suit arguing that the City of Sonora, California violated CEQA went it came to approval of a Wal-Mart expansion project without conducting a CEQA review. The Supreme Court unanimously rejected TJSBA’s argument for multiple reasons, primarily pointing to the fact that if the California Legislature had originally intended for CEQA review’s to be held before adoption of initiatives, it would have stated such when it was adopted in 1970, but it did not. Justice Corrigan said in his opinion, “Because CEQA review is contrary to the statutory language and legislative history pertaining to voter initiatives, and because policy considerations do not compel a different result, such review is not required before adoption of a voter initiative.”

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Last Chance to Vote

August 8, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Litigation, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

Today is your lest chance to vote for our blog for the ABA 100 best legal blogs.  If you have a moment, please nominate us. Thank you! http://www.abajournal.com/blawgs/blawg100_submit/

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Minnesota Formaldehyde Ban Applies to Which Children’s Products?

The state regulatory environment for manufacture and sale of consumer products is growing in number and complexity every year. The problem with this growing patchwork is not only the multiple, duplicative paperwork and deadline tracking duties this imposes on businesses, but the fact that each state legislature chooses to define basic key words just ever so slightly differently to make planning and compliance difficult.

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California DTSC to Hold Workshops on Priority Product Work Plan

August 5, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l), Supply Chain

The California Department of Toxic Substances Control (DTSC) will hold two workshops later this month on its draft Priority Products Work Plan, which will be released later this month prior to the workshops. The workshops, which will be held on August 19 and August 25, will provide an overview of the work plan and provide detailed information on how future Priority Products will be listed. The draft work plan will be open to public comment once it is released. We will provide more details on the work plan as well as an update on the workshops later this month.

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One Week Left to Vote For Us For Best Legal Blog

August 1, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Green Chemistry, Litigation, Legislative & Public Policy (State, Local, Federal, Int'l)

The American Bar Association (ABA) is accepting entries for their 100 best legal blogs. If you enjoy the content we produce, we ask that you please take the time to submit our blog for consideration. You can do so by visiting their site: http://www.abajournal.com/blawgs/blawg100_submit/ . You have until August 8 to vote.  Thank you!

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EPA Extends Comment Period

July 29, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

The U.S. Environmental Protection Agency (EPA) announced that it is extending the public comment period for 30 days on its advanced notice of proposed rulemaking (ANPR) for the hydraulic fracturing chemicals and mixtures rule. The ANPR was published on May 19, and comments were originally due on August 18; however the notice extends the deadline for public comments until September 18. EPA is seeking public comment on how it can obtain information on chemical substances and mixtures used in hydraulic fracturing, and whether it should implement a regulatory (under TSCA sec. 8(a) and/or 8(d)) and/or voluntary method to obtain this information. EPA is also seeking comment on ways to minimize reporting burdens and avoid duplication of state and other federal agency reporting requirements, while maximizing the data available for EPA risk characterizations.

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EPA Administrator Testifies Before Senate Committee

July 23, 2014 | Posted by Greissing, Patrick | Topic(s): Air Quality, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

EPA Administrator Gina McCarthy testified before the Senate Environment and Public Works Committee (EPW) regarding EPA’s proposed Clean Power Plan. McCarthy wrote in her testimony that, “The science is clear. The risks are clear. And the high costs of climate inaction are clear.” McCarthy stated the proposed plan “will cut hundreds of millions of tons of carbon pollution and hundreds of thousands of tons of other harmful air pollutants from existing power plants.” She continued on to say that these reductions will provide health benefits to the most vulnerable citizens, including children. She testified the proposed rule will not change the fact that coal and natural gas will continue to play a significant role in our nation’s energy future. The administrator wrote that the plan will deliver climate and health benefits of up to $90 billion dollars by 2030.

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Sentate to Hold Hearing on Clean Power Rule

July 22, 2014 | Posted by Greissing, Patrick | Topic(s): Air Quality, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

Tomorrow, the U.S. Senate Environment and Public Works Committee will hold a hearing at 9:30AM in the Dirksen Building to discuss EPA's Clean Power Rule, which was published last month.  EPA Administrator Gina McCarthy is scheduled to testify at the hearing.  The hearing is entitled, "Oversight Hearing: EPA's Proposed Carbon Pollution Standards for Existing Power Plants."  More information, including the testimony once published, can be found at the EPW's website.

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Oral Arguments Held in PhRMA v. Alameda Co., California

On August 28, 2013 the U.S. District Court for the Northern District of California upheld the Alameda County Safe Drug Disposal Ordinance (“the Ordinance”), the first pharmaceutical extended producer responsibility law in the United States. Three pharmaceutical industry associations brought a dormant Commerce Clause challenge to the Ordinance, but the court held that the Ordinance treats all drug companies alike and does not discriminate against those located outside of the county. PhRMA filed an appeal on September 12, 2013 and last Friday, July 11, 2013, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments.

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Vote For Us For Best Legal Blog

The American Bar Association (ABA) is accepting entries for their 100 best legal blogs.  If you enjoy the content we produce, we ask that you please take the time to submit our blog for consideration.  You can do so by visiting their site: http://www.abajournal.com/blawgs/blawg100_submit/.  Thank you!

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Maine DEP Proposes Regulations to Designate Four Classes of Phthalates as Priority Chemicals

July 10, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l)

Four classes of phthalates would be designated as priority chemicals under newly issued proposed regulations by the Maine Department of Environmental Protection (DEP). Di92-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP) and diethyl phthalate (DEP) would all be listed as priority chemicals and reporting requirements would be put in place on manufacturers of household cleaning products that contain one or more of the phthalates. The DEP will hold a public hearing on the proposed rule on July 29, and comments are due on September 29, 2014.

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Working Group to Address Radioactive Waste Regulations

June 23, 2014 | Posted by Elise N. Paeffgen

The Conference of Radiation Control Program Directors (CRCPD) established a working group of multiple state agency officials to develop recommendations for improved state regulations governing the handling, storage and disposal of technologically enhanced naturally occurring radioactive material (TENORM) from hydraulic fracturing. The working group is expecting to push states to move away from regulations based solely on picocuries per gram (pCi/g) of TENORM, to regulations based on exposure. Further, a dose-based, rather than risk-based, standard is preferred by the group. The working group also hopes to establish a mandatory training program for personnel who handle TENORM. The group is expected to release a white paper outlining its recommendations in 2015.

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Supreme Court Limits EPA’s Greenhouse Gas Emissions Rule

June 23, 2014 | Posted by Greissing, Patrick | Topic(s): Litigation, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

The United States Supreme Court ruled 5-4 overturning part of the Environmental Protection Agency’s (EPAs) permitting program for greenhouse gas emissions. The opinion in the case of Utility Air Regulatory Group v. EPA determined that EPA had gone beyond its limits in requiring stationary sources to obtain air pollution permits and install pollution controls. The court also determined that part of the regulation does not comply with the Clean Air Act (CAA), as EPA revised numeric thresholds for greenhouse gases that forced power plants, industrial facilities, and factories to obtain a permit. Justice Scalia stated that the regulations allow EPA to regulate 83% of greenhouse gas emissions, rather than the 86% originally in the regulation. The majority of the court upheld the portion of the regulation that requires “anyway” sources, “those that would need permits based on their emissions of more conventional pollutants,” to comply with best available control technology (BACT) requirements for greenhouse gas emissions.

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Clean Power Rule Published, Comment Period Begins

June 18, 2014 | Posted by Greissing, Patrick | Topic(s): Air Quality, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

The EPA’s Clean Power Rule, which we blogged and issued and advisory on, has been published in the Federal Register. With its publication, the public comment period has begun and will remain open until October 16, 2014. If commenters want their comments to be considered by the White House Office of Management and Budget (OMB), they should submit them by July 18, 2014. As part of the comment period there will be four public hearings. They will be held on July 29, in Atlanta, Georgia and Denver, CO; July 30, in Washington, DC; and July 31 in Pittsburgh, PA.

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Vermont Governor Signs Toxics Bill to Protect Children

June 10, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l)

Vermont Governor Peter Shumlin signed S. 239, paired down from its original version, which gives the Vermont Department of Health the authority to require manufactures of products with toxic chemicals to disclose chemicals that are present in children’s products that can cause harmful health effects. The law provides a list of 66 chemicals of high concern to children, and manufacturers must notify the health department if any of those chemicals are in their products by July 1, 2016 and submit disclosures biennially. The health commissioner must also provide a detailed description of the rule-making process by July 1, 2017.

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Senators Not Pleased with Proposed EPA Clean Power Plan Rule

June 4, 2014 | Posted by Greissing, Patrick | Topic(s): Air Quality, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

It did not take long for senators from both parties to voice their displeasure with EPA’s proposed Clean Power Plan rule, which we blogged about here. Sens. Joe Manchin (D-WV), John Barrasso (R-WY), Mitch McConnell (R-KY), and Mary Landrieu (D-LA) are among those that have spoken out against the rule. Sen. Manchin said that he plans to examine every option Congress has in order to get legislation to the Senate floor because the proposed rule needs to be stopped. Sen. Landrieu voiced her displeasure as well but has yet to offer a proposal to prevent the rule from moving forward. The issue in the Senate is Majority Leader Harry Reid will make it very difficult for any legislation relating to the proposed rule to move forward. Sen. Barrasso hinted at the only possible way to put a stop to the rule with legislation is the upcoming election and the possibility of the Republicans taking over the majority in the Senate. Earlier this year, Senate Minority Leader Mitch McConnell attempted to use the Congressional Review Act (CRA) in an effort to block another EPA proposed rule. The CRA however can’t be used until a rule becomes final. McConnell will offer legislation in an effort to stop the rule, which he believes is an “assault on Kentucky and the broader U.S. economy.”

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EPA Releases Proposed Clean Power Rule for Existing Power Plants

June 2, 2014 | Posted by Greissing, Patrick | Topic(s): Air Quality, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

The U.S. Environmental Protection Agency (EPA) unveiled its Clean Power Plan proposal as part of President Obama’s Climate Action Plan. The proposal aims to reduce carbon pollution from existing power plants to 30 percent below 2005 carbon emission levels by 2030. On top of reducing carbon emissions, the proposed rule also aims to cut particle pollution, nitrogen oxides and sulfur dioxide by more than 25 percent by 2030. The proposed rule would “maintain an affordable, reliable energy system, while cutting pollution and protecting our health and environment now and for future generations,” according to an EPA fact sheet.

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King County Adopts Fee Schedule for Drug Take Back Program

The King County Board of Health adopted a fee schedule as part of the requirements of its Secure Medicine Return Regulations. The scheduled fees include an annual operating fee, as well as plan review fees for:
• Review of a proposed stewardship plan;
• Resubmittal of a proposed stewardship plan;
• Review of changes to an approved stewardship plan;
• Submittal of an updated stewardship plan at least every four years; and
• Review of any petition for approval to use alternative final disposal technologies.
As we previously mentioned here, the total cost for each of the 161 producers who have submitted their notice to participate in the stewardship plan will be $284.00 for the first year, which includes the one-time plan review fee and annual operating costs for the first year. The following year, each producer will be subject to a $186.00 annual operating fee. (Note that these costs are estimates based on the expected number of program participants, and assuming the program moves forward in light of ligation in the Ninth Circuit, as discussed here.)

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Senators Ask EPA to End Hydraulic Fracturing Investigation

May 27, 2014 | Posted by Greissing, Patrick | Topic(s): Environmental Review (CEQA/NEPA), GHG/Climate Change, Hydraulic Fracturing

U.S. Republican Senators David Vitter (R-LA), Jim Inhofe (R-OK), Tom Coburn (R-OK), John Cornyn (R-TX) and Ted Cruz (R-TX), sent a letter to EPA Inspector General Arthur Elkins Jr. informing him that they view the Office of Inspector General’s (OIG’s) recent announcement of plans to conduct research into states’ ability to regulate hydraulic fracturing and its potential threat on water sources as “wholly inappropriate,” and request that the investigation end immediately. The senators believe the planned research is outside of the scope of the EPA OIG’s core mission, which is to “prevent and detect fraud, waste, and abuse... of the programs and operations of the Environmental Protection Agency.” The senators also question why OIG would conduct such research when OIG is admittedly facing a very tight budget and staff reductions.

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