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.

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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EPA’s Forthcoming RCRA Regulations May Threaten Reverse Distribution of Pharmaceutical Waste

In February, the Environmental Protection Agency (EPA) issued a Notice of Data Availability (NODA) seeking information on ways to more effectively regulate hazardous waste—including pharmaceuticals—in the retail sector under the Resource Conservation and Recovery Act (RCRA). The healthcare industry has already submitted comments expressing concern that EPA may modify the “reverse distribution” system currently in place for disposal of outdated or unsold pharmaceuticals. Under the reverse distribution system, retailers send expired and unsold pharmaceuticals to a central reverse distributor and receive financial credit for returned product from the drug manufacturer. The pharmaceuticals are then appropriately disposed of under RCRA. EPA currently takes the position that reverse distribution systems do not trigger RCRA regulation until the credit determination is made. However, EPA’s proposed rule—expected this August—could require pharmacies and retailers to make RCRA hazardous waste determinations, and obtain the proper means of hazardous waste disposal for pharmaceuticals, thereby eliminating the role of reverse distributors for hazardous waste pharmaceuticals.

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CCS Bills In the Senate

May 15, 2014 | Posted by Greissing, Patrick | Topic(s): GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

Sen. Heidi Heitkamp (D-ND) is trying to gain support from her colleagues for S. 2152, legislation that would increase the commercial availability of carbon capture and sequestration (CCS) technology. The “Advanced Clean Coal Technology Investment in our Nation Act of 2014” (AACTION Act) would expand the Department of Energy’s (DOEs) research and loan guarantee programs for CCS. Heitkamp believes the future of coal relies heavily on CCS technology. She doesn’t see her bill moving in this Congress, but is hopeful that her efforts to gain support from her colleagues that she will be able to push it forward next Congress.

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Biomonitoring California Launches Database

California’s Biomonitoring program was established in 2006 with the passage of SB 1379. The program is a collaborative effort of three departments: The California Department of Public Health (CDPH), the Department of Toxic Substances Control (DTSC), and the Office of Environmental Health Hazards Assessment (OEHHA). These agencies collect and study biological specimens with the ultimate goals of:

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Vermont Governor Signs GMO Labeling Bill

Vermont Governor Peter Shumlin signed legislation that will require the labeling of genetically modified (GMO) foods in Vermont beginning in July 2016. The law is the first of its kind in the United States and will require food offered for retail sale that is entirely or partially produced with genetic engineering to be labeled by July 2016. There is currently no required labeling policy by the U.S. Food and Drug Administration (FDA); however Connecticut and Maine have passed similar legislation though it won’t go into effect until other states pass GMO-labeling laws. Retailers will not be held liable for the failure to label a processed food unless the retailer is the producer or manufacturer of the food.

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EPA to Conduct Reviews at Superfund Sites Across Mid-Atlantic Region

The U.S. Environmental Protection Agency (EPA) announced that they will be reviewing Superfund sites across the Mid-Atlantic region this year, specifically mentioning sites in Virginia, Delaware and Pennsylvania. The reviews are conducted every five years to determine if the actions being taken are still protecting human health and the environment. The scope of the reviews includes inspecting cleanup technologies; examining monitoring and operating data; reviewing maintenance records; and determining if new regulatory requirements have been put in place since EPA’s original cleanup decision. EPA will examine a site in Suffolk City, VA; four sites in Delaware; and sixteen sites in Pennsylvania. Once the technical reviews are completed, EPA will provide the public an opportunity to evaluate the findings.

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Securities Law Alert: SEC Issues Statement on D.C. Court Of Appeals Decision on Conflict Minerals Rule: First Reports Due by June 2, 2014, as Scheduled

On April 29, 2014 the U.S. Securities and Exchange Commission’s(SECs) Division of Corporation Finance (the “Division”) issued a statement providing guidance on the decision in the case National Association of Manufacturers, et al. v. SEC, et al., No. 13-5252 (D.C. Cir. April 14, 2014.) The case challenged SEC’s “Conflict Mineral Rules” (Section 13(p)(1) of the Exchange Act and Rule 13p-1 thereunder). The case left some questions about the first reporting period; however the Division’s statement clarified that all reports for the first reporting period must be submitted to the SEC by June 2, 2014. Also included in the statement, the Division instructed companies that they will not be required to describe their products as “DRC conflict free,” having “not been found to be DRC conflict free,” or “DRC conflict undeterminable.”

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