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.

OEHHA to Hold Workshop April 14 to Discuss Prop 65 Reform

The California Office of Environmental Health Hazards Assessment (OEHHA) will hold a workshop on April 14 to discuss possible regulatory action to change the existing Proposition 65 program. While the ostensible purpose and goals of the pre-regulatory draft language are to make Prop 65 warnings more informative and meaningful, create more certainty for business and reduce litigation, the draft language appears to do exactly the opposite. The content of warnings could get very complicated and the duties of product manufacturers and sellers far more onerous, the worst of all, a possibly playground of opportunity for mischief by enterprising bounty hunting plaintiff’s attorneys.

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California State Water Board Approves New Industrial Stormwater Permit

On April 1, 2014,after more than a decade of analysis and debate, the California State Water Resources Control Board approved a new statewide industrial stormwater permit increasing and changing the requirements of industrial facilities to control storm water discharges from their sites. The Industrial General Permit (IGP), which is a statewide general National Pollutant Discharge Elimination System (NPDES) permit, regulates the discharge of storm water associated with industrial activity under requirements of the U.S. EPA. The IGP will regulate stormwater at sites such as manufacturing facilities, disposal sites, recycling sites, mining operations, and transportation facilities. The new requirements are many and will require far more record-keeping, sampling, reporting, and training to comply with best management practices (BMPs) and numeric action levels (NALs) to reduce pollutants in the stormwater discharge. The permit is to be considered for renewal every five years, and will go into effect July 15, 2015.

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Board Seeks New Approach to Hydraulic Fracturing Fluid Disclosures

March 25, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

The Department of Energy (DOE) released a draft report of the findings and recommendations of the Secretary of Energy Advisory Board (SEAB) Task Force on FracFocus 2.0. The 24-page report recommends “full disclosure of all known constituents” in fluids that are used in hydraulic fracturing. The report advocates for a “systems approach,” which would require “reporting by disaggregated chemicals.” This method would see chemicals reported separately from the additive names and products that contain them. SEAB’s believes that this approach should adequately protect trade secrets. The report encourages state and federal regulators to utilize the State Review of Oil and Natural Gas Environmental Regulations (STRONGER) process to develop and adopt standards for companies that make trade secret claims, as well as develop a process for validating compliance with reporting requirements. The task force is expected to present the findings of the draft report at SEAB’s meeting on March 27-28 in Washington, DC.

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Senators Introduce Flaring Reduction Bill

March 25, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

Sens. Mike Enzi (R-WY), John Barrasso (R-WY) and John Howevn (R-ND) introduced the Natural Gas Gathering Enhancement Act. The bill would expedite permitting of natural gas gathering lines on Federal and Indian land. Natural gas gathering lines will allow unprocessed natural gas to be transported from wells to natural gas processing plants that can separate the gasses (e.g. methane, ethane, propane) from each other. This will enable companies to capture and transmit more natural gas, and is hoped to reduce flaring. Sen. Hoeven stated that North Dakota wants to reduce flaring by over 60 percent in six years and that this legislation should help his state achieve that goal.

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Maine Proposes Four Chemicals for Priority Designation

March 24, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Litigation, Legislative & Public Policy (State, Local, Federal, Int'l)

The Maine Department of Environmental Protection (DEP) has proposed four rules that would designate cadmium, formaldehydemercury and arsenic as priority chemicals. A public comment period on the proposed rules expired January 31, 2014. The proposed rules would implement Maine’s Toxic Chemicals in Children’s Products law, which aims to protect the health, safety and welfare of children by reducing their exposure to chemicals of high concern by providing substitutes when feasible. Maine has already listed bisphenol A (BPA) and nonylphenol/nonylphenol Ethoxylates (NP/NPE) as priority chemicals.

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American Bar Association Publishes TSCA Reform White Papers

March 18, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l), Toxic Torts

As reform of the Toxic Substances Control Act (TSCA) is in motion in both the Senate (legislation) and the House (legislation and hearings), the American Bar Association (ABA) has released five white papers that they hope will “promote greater awareness, understanding, and dialogue on TSCA as it exists today, and on the potential shape of future reforms.” ABA’s Section of Environment, Energy, and Resources (SEER) has provided in depth analysis to provide a framework of the overview of TSCAwith the group’s first of five white papers. ABA SEER’s other four white papers delve into specific aspects of TSCA that are key components of any TSCA reform legislation: trade secret and confidential business information, public and private rights, safety standards, and preemption of state laws. With the release of these white papers, ABA continues to be one of the leaders in providing thought provoking analysis when it comes to TSCA reform.

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DTSC Announces Draft Initial Priority Products

The California Department of Toxic Substances Control (DTSC) has announced their first set of draft Priority Products as part of the Safer Consumer Products regulations. Being named a Priority Product, means the products are consumer goods that are solid in California and each contain at least one Candidate Chemical that have a hazard trait that can harm people or the environment. The three Priority Products and Candidate Chemicals are as follows: Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates, Children’s Foam Padded Sleeping Products containing TRIS phosphate or TDCPP, and Paint and varnish strippers and surface cleaners with methylene chloride.

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Draft TSCA Reform Bill Released

February 28, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Legislative & Public Policy (State, Local, Federal, Int'l), Toxic Torts

House Energy and Commerce Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) released a discussion draft legislation to reform the Toxic Substances Control Act (TSCA). Shimkus’ subcommittee has held a number of hearings on TSCA reform within the last year, and has now formulated legislation that he believes can be moved forward. The Chemicals in Commerce Act (CCA) would create a tiered information development system, which would allow EPA to obtain the hazard and exposure information it needs to enforce the law. The bill would allow EPA to place chemicals in commerce into two categories. The first would be high priority chemicals and they “would be subject to rigorous scientific examination by EPA,” according to a committee press release. If a chemical is determined to pose an unreasonable risk of harm, it would be subject to a rule that restricts its use or requirements that provide safeguards to limit exposure. The other category would be low priority chemicals for those chemicals that are not likely to pose an unreasonable risk of harm to human health or the environment. Confidential business information (CBI) would be protected under the draft legislation; however access to CBI would be broadened to include states and health professionals who need the information as long as they agree to protect the information. Shimkus said, “This discussion draft begins the legislative phase of the committee’s work and I am hopeful we can get something across the finish line with strong bipartisan support. It is a win-win solution that will improve safety protections while promoting innovation and economic growth across multiple sectors of our economy.”

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Landowners Sue Governor Cuomo to Move On Hydraulic Fracturing

The Joint Landowners Coalition of New York filed a suit against New York Governor Andrew Cuomo and the Department of Environmental Conservation (DEC) in an effort to force the state to issue an environmental impact statement (EIS) on hydraulic fracturing. The EIS is required under the State Environmental Quality Review Act (SEQRA). The plaintiffs request that the court compel the state DEC to complete the EIS, as it will determine whether New York will allow hydraulic fracturing in the Marcellus Shale. The suit was filed in the state Supreme Court.

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Fort Collins Seeks Dismissal of Suit As Groups Step In to Intervene on Hydraulic Fracturing Moratorium

February 27, 2014 | Posted by Greissing, Patrick | Topic(s): Litigation, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

The City of Fort Collins filed a motion asking the court to dismiss a lawsuit filed by the Colorado Oil and Gas Association (COGA) that would overturn the city’s voter-approved moratorium on hydraulic fracturing. Fort Collins’ motion to dismiss argues that its residents have “the full right of self-government in local and municipal matters” under the state constitution. The University of Denver Environmental Law Clinic filed a motion to intervene on behalf of Citizens for a Healthy Fort Collins, the Sierra Club and Earthworks. The groups argue that COGA’s suit is an attempt to bypass the will of the voters. They say that the moratorium was approved by the people to allow hydraulic fracturing studies to be completed and reviewed before deciding on whether to allow hydraulic fracturing or the storage of hydraulic fracturing waste in their community.

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Congressman Dingell Retiring

February 24, 2014 | Posted by Greissing, Patrick | Topic(s): Environmental Review (CEQA/NEPA), Energy, Legislative & Public Policy (State, Local, Federal, Int'l)

Former Energy and Commerce Committee Chairman Rep. John Dingell (D-MI) has announced that he will not seek re-election later this year. Dingell’s retirement, at the age of 87, will end a nearly 60 year career on Capitol Hill, which makes him the longest serving member of Congress in United States history. Dingell began his career in 1955, as he succeeded his father. His legacy will include his work on the Endangered Species Act, amending the Clean Air Act, the Safe Drinking Water Act, the National Environmental Policy Act and many other environmental laws. Another legacy Dingell will leave is his ability to bring both parties together for bi-partisan efforts. Current Energy and Commerce Chairman Fred Upton (R-MI) said of his colleague, “From spearheading the recovery of the auto industry to ensuring our drug safety laws are complete to updating our pipeline safety standards, he and I have had a strong bipartisan partnership. And, on the occasion we may disagree, we've never been disagreeable." It is widely expected that Dingell’s wife Debbie, will seek her husband’s seat later this year.

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President Orders Tighter Fuel Standards for Trucks

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

President Obama has issued an order to the U.S. EPA and the Department of Transportation (DOT) to develop tighter fuel economy standards for medium and heavy-duty trucks beyond model year 2018. The new standards must be finalized by March 2016, with the proposed standards developed by March 2015. Obama said the standards represent “another big step to grow our economy and reduce America's dependence on foreign oil.” The White House plans to work with truck manufacturers and operators in developing the standards.

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Longtime Congressman Henry Waxman to Retire

Rep. Henry Waxman (D-CA) will retire after four decades of serving the country as a member of Congress. Waxman served as a leader for the Democratic party on many health and environmental issues over the four decades, including: universal health insurance, Medicare and Medicaid coverage, cost of generic drugs, tobacco regulation, air and water quality standards, pesticide regulation, and climate change efforts. His leadership efforts earned him the spot of Chairman of the House Energy and Commerce Committee from January 2009 – January 2011. If you asked Republicans, they would say Rep. Waxman was a very partisan member of Congress, while Democrats would say he helped lead legislative compromises to make key bills become laws. Waxman said, “At the end of this year, I would have been in Congress for 40 years. If there is a time for me to move on to another chapter in my life, I think this is the time to do it.”

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Can States Regulate How Products are Made Outside their States? Missouri challenges California’s Egg Industry Law and Dormant Commerce Clause Will Get Yet Another Court View

Missouri Attorney General Chris Koster filed a lawsuit in the United States District Court for the Eastern District of California over California legislation that requires egg producers in Missouri to comply with California Proposition 2, a 2008 ballot initiative that requires California egg producers to comply with new regulations. In the suit, Koster alleges that the California farming law violates the Commerce Clause of the United States Constitution. This clause prohibits a state from enacting legislation that regulates conduct outside of its borders, protects its citizens from out-of-state competition, or puts undue burdens on interstate commerce. Koster said, “If California legislators are permitted to mandate the size of chicken coops on Missouri farms, they may just as easily demand that Missouri soybeans be harvested by hand or that Missouri corn be transported by solar-powered trucks.” Missouri produces about 1.7 billion eggs per year, 540 million of which are sold to consumers in California.

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Regulations Forthcoming Regarding Disposal of Controlled Substances

The Department of Justice (DOJ), Drug Enforcement Administration (DEA) has set a final action date of March, 2014 to implement the Secure and Responsible Drug Disposal Act of 2010. The legislation, which amends section 302 of the Controlled Substances Act (21 U.S.C. 822), became public law in October 2010. The Act gives the Attorney General authority to develop new regulations, under the Controlled Substances Act, to govern the disposal of controlled substances by DEA registrants and ultimate users. The rule will restructure existing regulations concerning disposal (including those applicable to reverse distributors) and establish a comprehensive regulatory framework for the safe, secure collection and disposal of controlled substances. Ultimate users, without being registered, will be able to give a controlled substance to a DEA-authorized collector for disposal, and long-term care facilities will be able to dispose of controlled substances on behalf of residents.

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EPA Issues Final NPDES General Permit for Hydraulic Fracturing Off of Southern California

February 4, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, GHG/Climate Change, Hydraulic Fracturing

EPA published its notice of availability of its final general National Pollutant Discharge Elimination System (NPDES) permit for discharges from offshore oil and gas exploration, development and production facilities in Federal waters off the Southern California coast. The permit applies to 23 existing development and production platforms and any new exploratory operations located in the Pacific Outer Continental Shelf. It requires operators to maintain an inventory of the quantities and concentration of the specific chemicals used “to formulate well treatment, completion and workover fluids.” It also requires oil and gas companies that are using hydraulic fracturing off the Southern California coast to include in their Discharge Monitoring Report (DMR)nany chemicals discharged into the ocean during the process. The final permit goes into effect on March 1, 2014.

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Subcommittee Holds Hearing on TSCA Reform

February 4, 2014 | Posted by Greissing, Patrick | Topic(s): Green Chemistry, Litigation, Legislative & Public Policy (State, Local, Federal, Int'l), Toxic Torts

Today, the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy held their fifth hearing on ways to improve the Toxic Substances Control Act (TSCA). The hearing focused on TSCA sections 4 and 8. Subcommittee Chairman John Shimkus in his opening statement said in regards to section 4, “We need to push beyond re-litigating those cases and focus on what authorities EPA has now or could reasonably use in the future to produce tailored, necessary and high quality test data and other information to carry out TSCA.” The hearing also focused on section 8 of TSCA and EPA’s authorities under that section to develop an inventory of chemicals that are manufactured or processed in the United States.

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State Regulation of Product Ingredients Could Get More Complicated: Proposed Vermont Law

Vermont legislators have introduced S.239, An Act Relating to the Regulation of Toxic Substances.  The legislation would require the state Department of Health to identify chemicals of high concern and publish a list of these chemicals.  The list would be published on or before July 1, 2015 and published biennially moving forward and will be posted on the Department’s website.

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Chemical Safety and Drinking Water Protection Act Introduced

Senators Joe Manchin (D-WV), Barbara Boxer (D-CA) and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act. The legislation implements tools that help provide oversight of chemical facilities. It strengthens state’s ability to prevent chemical spills that contaminate water supplies by establishing programs under the Safe Drinking Water Act. The legislation is based on four key principles:

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Battle Lines Drawn in 9th Circuit by Six Dissenting Justices Re Application of Dormant Commerce Clause to California’s Regulatory Reach over Products

 Industry concerned with the expanding role of state regulation of products and the potential Balkanization of global commerce should pay attention to the battle lines being drawn by the 9th Circuit. At issue is whether states may continue to be “laboratories of democracy” in regulating the composition and ingredient choice in products or whether their activities will be curtailed by the dormant Commerce Clause.  Please read our previous blog entries for more information: "Washington State Issues Revised Draft Regulations to Implement the Children's Safe Products Act: Comment Period Open Until June 15, 2011,"  "2013: Time to Prepare for Compliance with CA’s Safer Consumer Product Regulations, as published in the Environmental Leader, February 27, 2013," "California Releases Proposed Green Chemistry or Safer Consumer Product Regulations," "What Others Are Saying About the Chemical Safety Improvement Act of 2013," and "Bipartisan Compromise Will Strengthen Chemical Safety Laws."

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