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ETAB March 2018 Hot News

By Andrew W Fowler posted 04-04-2018 03:22 PM



Tenth Circuit denies auction winner’s right of way in CERCLA action

United States v. Colorado Eastern Railroad Co., 882 F. Supp. 3d 1264 (10th Cir. Feb. 23, 2018).

Summary by Kristen Kortick

NDSC Industrial Park, LLC, was held to lack standing to enforce a right-of-way on a CERCLA-remediated property which it recently purchased at auction. This ROW was between the United States, the State of Colorado, and Colorado & Eastern Railroad Company, but NDSC petitioned the court to enforce a consent decree barring Colorado & Eastern from conveying a right-of-entry to Thomas Z. Mars. The court upheld the lower court’s decision that NDSC lacked standing (see our past coverage here) because they failed to redress their injuries sooner and failed to request relief that would redress the injury. Both courts commented that NDSC’s claim would not have been dismissed if it brought its claim when the consent decree was issued.


EPA continues to implement long term recovery plan for Puerto Rico and U.S. Virgin Islands

EPA Media Relations, March 5, 2018

Summary by Kristen Kortick

EPA stated that it remains focused on three key areas: 1) drinking water systems, 2) hazardous materials removal and disposal, and 3) establishing territory and local partnerships. After assessing the 237 drinking water systems in rural Puerto Rico, the EPA has begun its next phase of fixing infrastructure damage on 40 of these systems. EPA has spearheaded efforts to collect and remove all hazardous waste from the islands, and to date has collected early 350,000 items of household hazardous waste. The agency asserts it will now move from response work to recovery efforts in both territories. Pete Lopez, EPA Regional Administrator, stated that “Along the way, we have strengthened our relationships with the governments of Puerto Rico and the U.S. Virgin Islands and with local communities. These relationships will serve us well as we all begin the more complicated work of long-term recovery.”


D.C. Circuit revises 2017 RCRA suit on solid waste definition

American Petroleum Institute v. Environmental Protection Agency, Slip. Op. No. 09-1038, (D.C. Cir. Mar. 6, 2018).

Summary by Kristen Kortick

This month, the D.C. Circuit clarified its July 2017 opinion upon environmental petitioners’ requests for rehearing (see our past coverage here) and allowed them to sever certain aspects of EPA’s 2015 solid waste definition rule. After finding the definition unreasonable under RCRA, the court affirmed EPA’s 2015 revisions to the 2008 RCRA definition of solid waste to include petroleum catalysts under the transfer-based exclusion. The court also vacated the “Factor 4” criteria in its entirety, but denied all other aspects of the petition for rehearing.

Company asks D.C. Circuit to force Mass. regulators to act on pipeline permit

Docket No. CP16-9-000; Petition for Review in Algonquin Gas Transmission, LLC v. Massachusetts Department of Environmental Protection et al., No. 18-1045 (D.C. Cir.)

Summary by Jamen Tyler

Algonquin Gas Transmission, LLC has filed a petition for review in the D.C. Circuit, asking the court to review Massachusetts’ failure to issue, condition, or deny a minor air-source permit for a natural gas compressor station along its Atlantic Bridge pipeline in Weymouth, Massachusetts. The petition contends that the Commonwealth’s failure to act on Algonquin’s permit application violates FERC’s 2016 deadline. Specifically, Algonquin argued that the failure to act on the application is “'prevent[ing] the construction [and] operation' of Algonquin's proposed compressor station.” Algonquin requested that the court “issue an order establishing a deadline for the Department to issue, condition, or deny the permit." The controversial Atlantic Bridge project requires the construction of new and replacement pipelines, compressor stations, and other stations in New York, Connecticut, Rhode Island, and Massachusetts.


NH delays reconsideration of Northern Pass denial

Michael Cousineeu, Union Leader, March 12, 2018

Summary by Jamen Tyler

New Hampshire’s Site Evaluation Committee has declined to review its rejection of the Northern Pass project until it has completed a written decision, with review likely to occur sometime in May. The 192-mile hydroelectric transmission project runs through more than 30 communities, with approximately 60 miles of the project buried underground. The Site Evaluation Committee rejected the project in February due to concerns about the project’s impact on tourism and the economy of northern New Hampshire.


Bay State Wind becomes first offshore wind project to receive FAST-41 status

Michelle Froese,, March 15, 2018

Summary by Jamen Tyler

Bay State Wind, a proposed 400 to 800-MW offshore wind project located off the Massachusetts coast, has received the first-ever FAST-41 designation for an offshore wind facility, allowing it to take advantage of the Fixing America’s Surface Transportation Act’s (FAST Act) improved coordination, transparency, predictability, and oversight of the federal permitting process. The FAST Act was signed into law on December 4, 2015, and Title 41 establishes various procedures and funding authorities to help streamline the federal review process for covered projects. Bay State Wind, a joint venture between Ørsted and Eversource, first submitted the project in December 2017 as part of Massachusetts’ first RFP for offshore wind energy. Mike Ausere, the Vice President of Business Development at Eversource, praised the designation, stating in response to the announcement that it was a “good day for Bay State Wind, but it’s an even better day for the citizens of Massachusetts.”

REGION 2 – NJ, NY, Puerto Rico, U.S. Virgin Islands

Despite doubts regarding the Administration’s intentions, Pruitt announces plan to force polluters to cleanup New Jersey Superfund sites

Jonathan D. Salant,, March 20, 2018

Summary by Sophy Sedarat

Although President Trump has proposed to cut the EPA’s budget significantly, Pruitt said the EPA “will have the money it needs [to address NJ Superfund sites] by ensuring that the companies responsible for the contamination clean it up.” New Jersey has more high-priority Superfund sites than any other state, with sites located in Bridgewater, Bergen County and Newark. Environmental groups are dubious about how Pruitt’s plan will play out; Jeff Tittel, director of the New Jersey Sierra Club, voiced concerns that the end result will be EPA removing the sites off the list without having them cleaned up at all. Dow Chemical is one company that is allegedly responsible for contamination at some of New Jersey’s Superfund sites. Pruitt has nominated Dow's senior attorney, Peter Wright, to run the EPA Office of Land and Emergency Management (OLEM), the agency that oversees Superfund cleanups.


Gov. Cuomo vows that New York will lead the charge against the Trump Administration’s environmental policies

Sarah Jackson, Washington Square News, March 9, 2018

Summary by Sophy Sedarat

During an appearance at NYU, NY Governor Cuomo condemned the recently-announced federal plan to open offshore U.S. waters to drilling for oil and gas. Cuomo, while calling the federal plan “really, really dumb,” stated that the Trump Administration’s move towards offshore drilling showed “a total disregard for the science, the reality and the history,” and promised that New York would “lead a countermovement to what [the Trump] Administration is doing on the environment.” Cuomo further said that coal is “the polluting energy of the past” and that New York will be coal-free by 2020. To that end, Cuomo identified strategies for reaching goals set forth in the New York State Offshore Wind Master Plan and, in furtherance of said goals, announced two new procurements of offshore wind programs.


Gov. Murphy asks member states of the Regional Greenhouse Gas Initiative (RGGI) to allow New Jersey to rejoin the group

NBC10, February 27, 2018

Summary by Sophy Sedarat

New Jersey Governor Phil Murphy formally requested that New Jersey be reentered into the Regional Greenhouse Gas Initiative (RGGI) as a member-state. Although Murphy signed an executive order to rejoin the group, the rules of RGGI require non-member states to obtain approval from current member states before being allowed to join – approval the governor must now wait for. New Jersey, which was actually one of the initial founding member-states of the group, was removed from RGGI by former Governor Chris Christie. RGGI is a cap-and-trade group which raises money through CO2 allowance auctions that is then redistributed to member states to finance clean energy initiatives.

Read more about the RGGI program here:


Rover pipeline permit violations continue

Jeremiah Shelor, Natural Gas Intel, March 15, 2018

Summary by Lindsay Hall

Following inspections in late February, the West Virginia Department of Environmental Protection (WVDEP) ordered Rover Pipeline LLC to halt construction activities in the state because of violations of the pipeline’s water pollution control permit. WVDEP identified numerous violations, which stemmed from improper erosion and sediment controls, and said that Rover “failed to comply with the approved Storm Water Pollution Prevention Plan.” WVDEP ordered the pipeline to install the required pollution mitigation practices and “immediately cease and desist any further land development activity.” Rover pipeline was ordered to halt operations previously for similar violations in West Virginia, and agencies in Ohio continue to pursue civil penalties against the company for permit violations during pipeline construction in that state.


Environmental organization appeals settlement of metals processing site

Bill Rettew, Daily Local News, February 22, 2018

Summary by Lindsay Hall

The Delaware Riverkeeper Network has filed an appeal with the Environmental Hearing Board challenging the Pennsylvania Department of Environmental Protection’s (PADEP) ratification of two amended settlement agreements concerning the Bishop Tube Site. The 13-acre site is a former metals processing plant with known TCE contamination. The Delaware Riverkeeper Network alleges that the PADEP’s failure to publish the amendments for public review and comment violated the state’s Hazardous Sites Cleanup Act and that the amendments do not reflect that the planned use for the site, changed from commercial development to residential development, which in turn necessitated a change in cleanup standards for the site. No remediation plans have been provided by the PADEP.


Congress facing deadline on Chesapeake Bay cleanup

Karl Blankenship, Maryland Reporter, March 18, 2018

Summary by Lindsay Hall

Congress is facing a March 23 deadline to determine the extent of the EPA’s authority to enforce, and its funding to support, the Chesapeake Bay cleanup efforts. Maryland Governor Larry Hogan, the chair of the Chesapeake Executive Council, criticized the proposed House amendment which would have limited the EPA’s regulatory authority to enforce state pollution reduction obligations. The Trump Administration is proposing to cut funding for the Chesapeake Bay Program by 90%, eliminating funding for state and local restoration programs. The final budget decision will impact local governments, as last year $48 million of the Chesapeake Bay Program went directly to the six states in the Bay watershed and Washington, D.C. for drinking water improvements, and oyster, crab and fish population restoration projects.   



Mississippi updates hazardous waste regulations

11-3 Miss. Code. R. § 1 (2018).

Summary by Carly Moss

Nearly two years after the EPA promulgated rules on waste generators, Mississippi will include these provisions in its state regulations. Specifically, Mississippi incorporates the EPA regulations at 40 CFR 264, to define certain terms in its rules. A hearing to discuss the proposed amendments will be held April 10, 2018.  


Georgia senate passes solid waste surcharge reform

Ga. H.B. 792 (2018).

Summary by Carly Moss

The Georgia Legislature increased the surcharge amount for municipal solid waste disposal by amending Ga. Code Ann. § 12-8-39. Privately owned waste facilities will now have to pay a $3.00 surcharge for each ton of waste, except for construction or demolition waste, which will incur a $1.00 surcharge per ton. Local governments will use the collected money to offset the impact and cost of solid waste management and waste management education. The new amendments become effective June 30, 2018, and sunset on July 1, 2019, unless reauthorized.


Tempting tax incentives offered for Kentucky brownfield development

Ky. S.B. 269 (2018).

Summary by Carly Moss

A recent bill introduced in the Kentucky senate would amend the maximum tax credit a recipient can receive, originally limited to $150,000, to 100% of the cost of remediation and 50% of the cost of construction and redevelopment. The bill also suggests this credit be available for 15 years instead of 10. However, the bill did add some eligibility requirements: the property must be vacant for at least three years, and a recipient must invest at least $1 million in the project. The Senate Appropriations and Revenue Committee is currently reviewing this proposed language. 



Final consent decree requires business to monitor and remediate manganese emissions

EPA News Release, March 7, 2018

Summary by Sarah Cinquemani 

EPA and DOJ announced a final consent decree with S.H. Bell Co. requiring the business to monitor and take necessary actions to reduce manganese emissions from its 92-acre raw products storage and material handling facility. Since January 2017, when the consent decree was lodged in federal court, S.H. Bell Co. has provided immediate reductions and taken long-term action to reduce contamination. This final consent decree requires specific safeguards such as: fugitive dust control measures, implementation of a tracking system for manganese materials, air monitoring, and video recordings of specified facility operations. Both the Ohio EPA and the Pennsylvania DEP have been involved in the process because the site spans both states. Manganese occurs naturally in rocks and is used in steel production, but can be toxic if inhaled at high levels of exposure.


Fire at spent fluorescent lighting waste facility sparked EPA cleanup

EPA News Release, February 28, 2018

Summary by Sarah Cinquemani 

On February 13th, EPA was notified about a fire at the Fluorescent Recycling, Inc., warehouse in Cleveland, Ohio that contained hazardous waste such as spent lighting material. EPA assisted the Cleveland Fire Department in determining that contamination on site includes mercury vapors and PCBs, and has begun to clean up nearly 2 to 3 million spent fluorescent lamps, 250 drums of PCB-containing lighting ballasts, and other electronic equipment stored in the warehouse. EPA is working with the Ohio EPA to address the hazardous waste throughout the entire warehouse.


Comment period open for proposed cleanup plan at the Keystone Corridor Superfund Site in Indianapolis

EPA News Release, March 9, 2018

Summary by Sarah Cinquemani 

From March 7 until April 5, the EPA is holding a public comment period about the proposed remediation of vapor intrusion at the Keystone Corridor Superfund Site. Vapor intrusion occurs when pollutants travel through soil in the form of a gas and eventually seep into buildings through foundation cracks and holes. The proposal includes the installation of mitigation systems at eight known industrial and commercial buildings, and perhaps 88 additional buildings, both residential and commercial, where indoor air constituents may be harmful to human health. In 2013, the Site was listed in the National Priorities List because it had been contaminated by a chlorinated solvent plume that might impact public water supply wells.



New Mexico District Court stays consolidated cases in Gold King Mine action brought by New Mexico and Navajo Nation

N.M. Envtl. Dep’t v. U.S. EPA, Slip. Op. No. 16cv465 (D.N.M. Mar. 9, 2018).

Summary by Kristen Kortick

The court found that staying the consolidated cases would not unreasonably harm any parties while the Judicial Panel on Multidistrict Litigation (MDL Panel) carves a path for ruling on all four Gold King Mine cases together. The MDL Panel will hold a hearing on March 29, 2018, to determine whether the cases shall be transferred to various district courts for coordination or, rather, consolidated and assigned in the District of Utah. The court also denied without prejudice the plaintiffs’ motions to file amended complaints, but allowed them to resubmit complaints that include any changes in circumstance since the 2016 suit began. Last, the court ordered the parties to confer with the other plaintiffs in the McDaniel case in the event the MDL Panel transfers the case to Utah.


Louisiana begins redeveloping brownfield sites and in low-income neighborhoods with federal funding

Advocate Staff, The Advocate, March 9, 2018

Summary by Kristen Kortick

Through the Opportunity Zones program, part of Congress’ Tax Cuts and Jobs Act of 2017, the Louisiana Economic Development department has begun accepting nominations for projects aimed at benefitting low-income communities throughout the state. The federal program aims at attracting private investments to rebuild struggling communities through federal tax incentives. In the 2017 Tax bill, Congress recommended utilizing previously designated Tax Credit projects and Renewal Community grants to strengthen the Opportunity Zones program. The State plans to recommend nominations to the Treasury Department in mid-April.


New study ranks Texas #1 in waste dumping in waterways

Naveena Sadasivam, The Texas Observer, March 15, 2018

Summary by Kristen Kortick

Environmental Texas’s report suggests that the Texas Commission on Environmental Quality (TCEQ) may not be doing enough to mitigate nearly half of Texas’ major industrial facilities from dumping waste, oil, and chemicals into state waterways and tributaries. The study provided several examples where TCEQ has yet to implement fines for facilities out of compliance with the Clean Water Act. In response, a TCEQ spokesperson asserted that the department closely monitors violations and enforces corrective actions when the claims are serious enough to deter future noncompliance. The report further suggests that EPA’s proposed budget cuts may exacerbate the problem since limited resources will lead to a lack of enforcement action in the future.



EPA, Missouri team up to decrease emissions, upgrade school busses

Bryce Gray, St, Louis Post-Dispatch, March 18, 2018

Summary by Brandon M. Hall

In an effort to protect the health of children and decrease emissions, the EPA has offered $745,000 to cover the cost of new busses for 18 different Missouri school districts. The effort comes as part of a larger, nation-wide project pumping $8.7 million for bus replacements and retrofits funded through the EPA’s Diesel Emissions Reduction Act program. This comes in addition to the pledged efforts of the state of Missouri’s DNR to utilize portions of a $41 million lawsuit that Missouri collected from Volkswagen to pursue similar upgrades. While the specifics of the two-source contribution have yet to be finalized, there is expectation that the concerted effort will help Missouri get the most “bang for its buck,” spreading out the savings to the multiple districts.


Groundwater contamination fears surround Missouri coal ash pond

Eli Chen, St. Louis Public, March 8, 2018

Summary by Brandon M. Hall

Increased public awareness and staunch opposition from environmental advocates have left in limbo the future of approval for a permit for Ameren’s Rush Island Energy Center’s coal ash pond in southeast Missouri. While the Missouri DNR is currently renewing a permit for the Rush Island site, for the first time, the plant will be required to conduct groundwater monitoring as part of the state's efforts to increase oversight of contamination caused by ponds that coal-fired power plants use to dispose waste. This increased monitoring stems from mounting concerns from Missouri’s Sierra Club chapter and attorneys from Washington University about the existing contamination there. But Ameren has challenged the assertion on the grounds that the site is only proposed to be open until 2020, and states that "[t]he underlying conclusion is that there's no harm to human health or the environment as a result of the activities at Rush Island."


Iowa utility to follow trend of phasing out coal ash ponds

Kate Payne, Iowa Public, March 5, 2018

Summary by Brandon M. Hall

MidAmerican Energy Company, Iowa’s largest utility, joins others in winding down usage of coal ash ponds for storage of toxic coal ash dust, opting instead to put the waste in sealed landfills, or recycle it. The movement away from utilizing coal ash ponds as a method of storage has come swiftly after an Obama administration rule on disposing of the dust has gone into effect. MidAmerican energy has indicated its desire to use some of the ash to build concrete and the rest of the ash will be recycled or stored in a sealed landfill where runoff is not a threat.



Under the cover of trade secrets, BLM grants royalty reduction to Bowie

Brain Maffly, Salt Lake Tribune, March 7, 2018

Summary by Calvin Dixon

Unbeknownst to the public, Bowie Resource Partners, Utah’s largest coal producer, sought a tax royalty reduction for its mines on federal lands due to unforeseen difficulty in extracting coal last December. The request came to light this month after the Utah Division of Oil, Gas and Mining (DOGM) signed off on BLM’s approval, which cited geologic and engineering challenges as reasons for the reduction. BLM also explained that the secrecy of the request was intended to protect the company from competitors exploiting confidential information. While critics blasted the royalty cuts as a way to fleece the public and local governments by way of a public subsidy for the coal company, federal and state officials contended that royalty reductions increased overall revenues because coal would be mined that might have remained in the ground.


Montana DEQ attempts to clean up facts, along with the Montana Pole Plant

Nora Sacks, Montana Public Radio, March 14, 2018

Summary by Calvin Dixon

As Montana DEQ prepares to complete its remediation of Montana’s smallest Superfund site, representatives from DEQ discussed the project with local Butte citizens concerned about ongoing risks at the dioxin-polluted site. DEQ’s risk assessment expert, Aimee Reynolds, explained how dioxins, while naturally present in the environment, are challenging to remove from sites contaminated by wood industry byproducts, since concentrated dioxin does not degrade, evaporate or break down. DEQ, Reynolds stated, utilized rigorous risk assessment to determine the levels of exposure for human health at the Montana Pole Plant, and concluded that the appropriate response was to treat, cap, and store approximately 200,000 cubic yards of contaminated soil. Local scientist Dave Hutchins still questioned the safety of the neighborhood bordering the site but was relieved DEQ’s actions were proactive.


New rules force modifications in self bonding to ensure environmental cleanup

Cooper McKim, Wyoming Public Media, March 13, 2018

Summary by Calvin Dixon

Wyoming’s DEQ issued a final rule that changed how coal companies self-bond. Since the 1980’s, Wyoming allowed 100 percent self-bonding, which allows coal companies to guarantee clean-up through securities rather than by purchasing insurance or maintaining capital reserves. DEQ’s new rules reduce maximum coverage to 75 percent, and would force coal companies to diversify their insurance strategies to assure clean-up cost. Recent coal company bankruptcies and corporate law changes from the Dodd-Frank Act spurred the rule changes. The new rule also mandates changes for umbrella holding companies and mandated reviews of outdated financial assessments.



California climate change suits against fossil fuel companies will stay in federal court

People of the State of California v. BP P.L.C. et al., Case Nos. C 17-06011 and No. C 17-06012 (N.D. Cal. Feb. 27, 2018).

Summary by Logan Senack

A federal district court denied the plaintiffs-cities’ request to remand two California climate change suits to state court. In a Feb. 27 order, the court ruled that federal common law governed the claims. The cities of Oakland and San Francisco and a group of other California municipalities are suing fossil fuel companies alleging public nuisance and seeking damages. In its order, the court certified the removability question for interlocutory appeal.


California’s PetersenDean acquires Hawaii’s Haleakala Solar for an undisclosed price

Press release, PetersenDean, March 8, 2018

Summary by Logan Senack

According to the company’s press release, PetersenDean’s acquisition of Hawaii’s largest solar and battery installer will make PetersenDean the largest roofing and solar company in the country, public or private. Haleakala operates on three Hawaiian Islands and plans to expand to them all in 2018. The purchase occurred after Haleakala Solar approached PetersenDean last year.


California ISO (CAISO) and Imperial Irrigation District (IID) settle suits over records and antitrust claims

Sammy Roth, The Desert Sun, March 8, 2018

Summary by Logan Senack

IID, a public water and energy service agency, and CAISO, California’s electric grid operator, have agreed to a settlement that will end two lawsuits spanning several years. IID sued CAISO first in 2015 for antitrust violations, alleging that CAISO was abusing its monopoly powers by underestimating limits on electricity exports from the Imperial Valley region and depriving IID of potential revenue. In 2016, IID sued again under California’s Public Records Act demanding documents that it believed could expose the CAISO’s decision to underestimate limits. As part of the settlement, CAISO will upgrade a power line to permit more energy to move from the Imperial Valley to the rest of California.



Washington Approves First Ever Oil Spill Response Plan for Railroads

Washington Department of Ecology, News Release, March 1, 2018

Summary by Sarah Cinquemani 

The Washington Department of Ecology (“Ecology”) approved an oil spill response plan for the largest freight railroad company in the state, BNSF Railway Company. BNSF owns 1,332 miles of track and delivers crude oil to refineries. Under the 2015 Oil Transportation Safety Act, Ecology requires rail lines to have contingency plans similar to the requirements for vessels, pipelines, and oil facilities that guarantee they can respond to a spill quickly and effectively. With the approved plan, BNSF meets Ecology’s more protective requirements. Highlights of the plan include: prepositioning of response teams statewide, ongoing annual training for first responders, development of oil spill drills, and more. In 2017, railroad companies moved approximately 2 billion gallons of crude oil through the state travelling through local communities, along major highways, the Columbia River, and Puget Sound and railroads accounted for approximately 25% of all crude oil moving through Washington.


EPA Awards Funds for Healthier School Buses

EPA News Release, March 8, 2018

Summary by Sarah Cinquemani 

In an effort to make school buses more efficient, the EPA awarded $491,000 to replace or retrofit 27 older diesel school buses in nine school districts in Idaho, Oregon and Washington. These funds will be distributed as rebates through EPA’s Diesel Emissions Reduction Act program. EPA Region 10 Administrator Chris Hladick is in favor of the program, stating, “[t]hrough the Diesel Emissions Reduction Act, EPA is equipping these local school districts with cleaner-running school buses, helping them along the route to healthier kids and communities in the Northwest.” Factors considered in how rebates are distributed include the engine model year and the size of the bus. If a school district is replacing a bus, it could receive up to $20,000 and if it is retrofitting bus engines, it can receive up to $6,000. The initiative aims to reduce toxic emissions from diesel buses that are related to health problems like asthma and lung disease. Nationwide, 32 states have the opportunity to receive funding from an $8.7 million pool of rebate funds.