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ETAB Hot News March 2019

By William Yon posted 04-05-2019 01:36 AM


ETAB Hot News March 2019

Below is the ABA SEER Environmental Transactions and Brownfields (ETAB) Committee's Hot News installment for March 2019! 

Hot News
 is a monthly summaries of cases, legislation, and news related to our committee, organized by EPA Region.  Join the conversation @ABAEnvLaw#ABAEnvTxns.

The ETAB Vice-Chairs for Electronic Communications and Social Media 
Meaghan A. Colligan, Esq., Andrew Fowler, Esq., and William Yon, Esq.



EPA touts action on Superfund sites
EPA Press Office, March 4, 2019
Summary by Carly Moss

Since taking office, the Trump Administration has consistently argued that it, more than any other administration before it, is making Superfund sites a priority. This past month, the EPA provided numbers for the claim by announcing that in the fiscal year 2018, the agency removed all or part of 22 sites from the National Priorities List. The number signifies the largest reduction of Superfund sites in one year since 2005. EPA’s full report also included other Superfund accomplishments such as working toward redevelopment at 51 additional sites and providing oversight on over 200 removal actions. The agency intends to continue making Superfund sites a priority and has already begun planning for next year.

CERCLA recovery action against EPA may continue for Gold King Mine release
In re Gold King Mine Release in San Juan County, Colorado, on August 5, 2015, 1:18-md-02824-WJ (D.N.M. Feb. 28, 2019).
Summary by Carly Moss

A New Mexico District Court denied the EPA’s motions to dismiss a lawsuit brought by New Mexico, Utah, and the Navajo Nation (Plaintiffs) for response costs from the Gold King Mine disaster. The EPA had argued that sovereign immunity prevented its liability for the release because they were not responsible for the release itself. The district court quickly dismissed the sovereign immunity argument and stated that the plain language of CERCLA waives the agency’s sovereign immunity. EPA also argued that the Plaintiffs did not accurately allege the EPA was an operator, arranger, or transporter under the CERCLA statue. The district court found that Plaintiffs alleged operator, arranger, and transporter liability by outlining with specific facts that the EPA managed and directed operations having to do with disposal of hazardous waste, took intentional steps to dispose of a hazardous substance, took steps to drain the mine and treat the water at the site. The court did grant one of the EPA’s motions to dismiss regarding claims brought under the Federal Tort Claims Act, however, the Plaintiff’s primary claims survive.

New rules for pharmaceutical disposal bring relief for healthcare facilities
William C. Schillaci, EHS Daily Advisor, February 25, 2019
Summary by Carly Moss

Differentiating hazardous waste production at industrial and healthcare facilities, EPA’s new rule seeks to help healthcare facilities manage pharmaceutical waste. The rule specifically proposes a new subpart to the statute to remove hazardous waste pharmaceuticals from full RCRA regulation, while maintaining a prohibition on dumping hazardous waste pharmaceuticals down the drain. The proposed rule also would eliminate the dual regulation of pharmaceutical waste by RCRA and the DEA as controlled substances. The rule takes effect on August 21, 2019, but, aside from the dumping prohibition, each RCRA authorized state will have to adopt the revisions individually before they become effective.




United States sues City of Quincy, Massachusetts for Clean Water Act violations
United States v. City of Quincy, Mass., et al., No. 1:19-cv-10483 (D. Mass. Mar. 14, 2019).
Summary by Amy O'Brien

The United States filed suit against the City of Quincy, Massachusetts alleging violations of the CWA caused by the city’s illegal discharge of sewage and wastewater into Boston Harbor. The complaint alleges that the discharges resulted in E. coli and Enterococcus contamination along the Boston coast, as evidenced by yearly water quality samples taken from 2009 through 2018.  The United States seeks the maximum monetary penalties permitted under the CWA: $37,500 for each daily violation before November 2, 2015, and $54,833 for each violation thereafter. Acting Region 1 EPA Administrator, Deb Szaro, commented that this recent lawsuit “represents a critical step in the ongoing cleanup of Boston Harbor and nearby urban rivers.” 

Climate change lawsuit against ExxonMobil may go forward, district court rules
Conservation Law Foundation v. Exxon Mobil Corp. et al., No. 1:16-cv-11950 (D. Mass. Mar. 13, 2019).
Summary by Amy O'Brien

A Massachusetts District Court ruled that the Conservation Law Foundation (“CLF”) plausibly alleged that ExxonMobil failed to consider the climate change effects of its Everett, Massachusetts petroleum facility, thereby surviving Exxon’s motion to dismiss. The court found that CLF adequately alleged that there is a risk of imminent harm stemming from discharges of pollutants from the Exxon facility. Although representatives for Exxon contended that their EPA-issued permit does not require them to consider climate change, the court disagreed, noting that the permit requirement to consider “possible weather events” includes those caused by climate change. 

Dominion Energy reaches deal with the State of Connecticut to keep nuclear power station in service for another decade
Darrell Proctor, PowerMag, March 17, 2019
Summary by Amy O'Brien

Dominion Energy reached a ten-year deal with Connecticut officials to keep its Millstone Power Station in service. Millstone is Connecticut’s only nuclear power station and currently produces approximately half of the total electricity and 98% of the carbon-free energy for the state. Both sides of the agreement expressed satisfaction with the deal, noting the preservation of both the state’s carbon-free energy and thousands of residents’ employment.

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

Proposed consent decree requires NYC to build $1.6B reservoir cover by 2049
United States v. City of New York, et al. (E.D.N.Y. Mar. 18, 2019).
Summary by Amy O'Brien

The United States filed a proposed consent decree directing New York City to build a $1.6 billon reservoir cover to prevent contaminants, such as animal feces and other pathogens, from entering the 90-acre Hillview Reservoir in Yonkers. The reservoir provides approximately one billion gallons of drinking water daily to NYC residents via aqueducts, and it is the last stop before the water enters city tunnels. The consent decree directs the city to build the cover, as required under the Safe Drinking Water Act (“SDWA”), by 2049. Moreover, the consent decree requires the city to build a new aqueduct; make necessary improvements to the reservoir; control animal populations surrounding the reservoir; conduct routing sampling; and pay a civil penalty of $1 million for its past SDWA violations. This newly proposed consent decree was attached to a SDWA lawsuit brought by the United States for the city’s failure to construct the reservoir cover by its previous 2017 deadline. 

NY water district sues Dow Chemical and others over 1,4-dioxane groundwater contamination
Bethpage Water District v. The Dow Chemical Co., et al., No. 2:2019cv01348 (E.D.N.Y. Mar. 7, 2019).
Summary by Vaishali Gaur

The Bethpage Water District sued Dow Chemical, Northrop Grumman, and other chemical companies in New York federal court, alleging that the companies contaminated drinking water supply wells with highly toxic chemicals from their operations. The EPA listed the Bethpage site as a Superfund site in 1983. According to the lawsuit, the defendants contaminated the groundwater with 1,4-dioxane through leak spills, routine wastewater discharge, and “careless disposal practices.” 1,4-dioxane is an emerging contaminant, a carcinogen, and not currently regulated by the state or federal government. Over half of the District’s water wells tested positive for 1,4-dioxane at 1 part per billion or above, which is the recommended maximum contaminant level. In addition to this lawsuit, twelve other Long Island water districts have sued chemical manufacturers over 1,4-dioxane.

Long Island fire station listed as New York Superfund site due to PFAS contamination
David M. Schwartz, Newsday, February 27, 2019
Summary by Amy O'Brien

New York DEC added the Long Island Hampton Bays fire station to the state Superfund Registry due to PFOS and PFOA contamination at the site. Starting in 2014, water quality tests on wells neighboring the station revealed concentrations of PFOA and PFOS above EPA’s lifetime health advisory of 70 parts per trillion. Last year, sampled groundwater at the site revealed PFOS contamination at 2,400 parts per trillion. PFOA and PFOS are man-made emerging contaminants discovered in drinking water across the country. Exposure to these contaminants, commonly found in certain types of firefighting foam, can cause a host of medical issues, including: birth defects, testicular and kidney cancers, and liver and thyroid damage. The Hampton Bays fire station is the third Suffolk County site listed to the registry since 2016 as a result of PFOS and PFOA contamination.




Pennsylvania court holds underground injection well zoning challenge may proceed without state or federal permits
In re Penneco Envtl. Sols., LLC, No. 931 C.D. 2018, --- A.3d ----, 2019 WL 1086638 (Pa. Commw. Ct. Mar. 8, 2019)
Summary by Ian Curry

The Pennsylvania Commonwealth Court ruled that Penneco Environmental Solutions LLC could challenge a local zoning ordinance for a proposed underground injection well because the ordinance prevented it from seeking state permits for its project. Penneco, a wastewater disposal company, challenged the Borough of Plum’s zoning plan because it improperly barred its proposal by disallowing underground injection wells in any district throughout the borough. In November 2017, Plum’s Zoning Hearing Board dismissed the zoning challenge, stating it was not ripe because the company still needed to obtain state permits. Judge Robert Simpson disagreed—to receive a state permit from the Pennsylvania Department of Environmental Protection (DEP) applicants had to show compliance with all local ordinances, including zoning. Therefore, the court held the zoning challenge was ripe, since the zoning plan impacts Penneco’s ability to obtain a DEP permit.  

Pennsylvania General Assembly proposes bill to save struggling nuclear power plants
Jeff St. John, Greentech Media, March 12, 2019
Summary by Ian Curry

Pennsylvania legislators introduced a bill to save economically struggling nuclear power plants by providing nuclear power producers renewable energy credits whose value can be passed onto ratepayers. Specifically, the bill proposes folding nuclear energy into Pennsylvania’s Alternative Energy Portfolio Standards (AEPS)—which is similar to programs in New York and Illinois—thereby enabling nuclear plants to receive credits for their positive impact on state air quality. First Energy and Exelon, owners of the Beaver Valley Nuclear Power Station and Three Mile Island, respectively, advocated for the proposal, stating both plants would close by 2021 without assistance. However, under the bill as written, all nuclear energy produced in the state would be eligible to receive AEPS credits.

Pennsylvania court allows the state to bring action against fracking companies for unfair trade practices and antitrust violations
Anadarko Petroleum Corp. et al v. Commonwealth, No. 58 C.D. 2018, --- A.3d ----, 2019 WL 1211892 (Pa. Commw. Ct. Mar. 15, 2019)
Summary by Ian Curry

The Pennsylvania AG brought an action against Anadarko Petroleum Corp. and Chesapeake Energy Corp. (Appellants) under PA’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) alleging appellants used deceptive, misleading, and unfair trading practices, and committed antitrust violations in their attempts to secure subsurface mineral rights leases from private landowners. The AG alleged appellants split a portion of the Marcellus Shale so each company would have an exclusive area to secure subsurface mineral rights without competition. Appellants raised two issues on interlocutory appeal: (1) the AG could not bring a claim under the UTPCPL because the law only applies to sellers, and they were buyers in this context; and, (2) antitrust violations cannot be brought under the UTPCPL since it was not intended to be an antitrust statute. The Commonwealth Court of Pennsylvania held (1) since appellants conduct “trade” or “commerce” in securing subsurface mineral rights, the AG may bring an action under the UTPCPL and (2) the AG may bring an antitrust action under the UTPCPL against appellants if the antitrust conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices.” 


Arbitration provisions require care and attention
Papalote Creek II, LLC v. Lower Colorado River Authority, 2019 WL 1219501, No. 17-50852 (5th Cir. March 15, 2019).
Summary by Abram Orlansky

Papalote Creek II, LLC (Papalote) entered into a Power Purchase Agreement with the Lower Colorado River Authority (LCRA), whereby LCRA agreed to purchase all the energy generated by Papalote’s 87-turbine wind farm. The Agreement provided that any dispute “with respect to either Party’s performance” must be submitted to arbitration. LCRA, while continuing to abide by its obligations under the Agreement, sought arbitration on the question whether the Agreement limits LCRA’s liability to $60 million in the (hypothetical) event that LCRA failed to purchase all the energy generated by Papalote in the future. The Fifth Circuit held that because the arbitration provision was limited to the parties’ performance, and the question of whether the Agreement limited LCRA’s potential liability was one of interpretation, the arbitration provision could not properly be applied to this (hypothetical) dispute. The court explained that specific arbitration provisions like the one cited by Papalote will deprive arbitrators of the power to decide any other matters. 

Del Monte alleges former packing company’s (lack of) disclosures were bananas
Del Monte Fresh Produce N.A. Inc. v. Koster et al., No. 19-cv-20739, complaint filed, 2019 WL 935178 (S.D. Fla. Feb. 25, 2019).
Summary by JD Howard

Del Monte executed a stock purchase of Mann Packing Co. Inc. for approximately $360 million, but now seeks to recoup some of that amount in the Southern District of Florida because of allegedly fraudulent disclosures concerning environmental conditions at two distribution and packing facilities. Del Monte claimed it would have lowered its offer by at least $20 million had Mann Packing disclosed $2.4 million in hidden costs that led to a $4.1 million projected earnings deficit. Additionally, Del Monte alleged that Mann Packing knowingly breached covenants in the stock purchase agreement warranting that the company had adhered to environmental laws at a separate packing facility. Del Monte intends to recover from Mann Packing's former owners more than $1.5 million it spent correcting the environmental law violations, plus at least $20 million in damages caused by the company’s failure to disclose the transportation costs associated with the new distribution facility and the resulting earnings shortfall. 

Environmental groups challenge Duke Energy’s plans for North Carolina
Summary by JD Howard

Clean energy advocates’ recent filings with North Carolina utility regulators alleged that Duke Energy’s long-range plans failed to adequately consider renewable energy sources. The filings were submitted in response to Duke’s “Integrated Resource Plans,” which show how the utility plans to meet customer demand for electricity over the next 15 years. Specifically, the filings alleged that Duke’s plan would cost customers too much money by keeping aging, inefficient coal plants online, building new power plants that are not needed to meet electricity demand, and by failing to tap the full potential of abundant, low-cost, clean energy resources like solar and energy efficiency. The groups requested a hearing on the plans to allow customers the opportunity to thoroughly examine the multi-billion-dollar investments included in the long-term plans.

Four Region 4 sites among nation’s 10 worst for coal ash groundwater contamination
Abel Russ and Courtney Barnhardt, Environmental Integrity Project, March 4, 2019
Summary by Abram Orlansky

In a March 4 report by the Environmental Integrity Project addressing areas with contaminated groundwater near coal-fired power plants nationwide, the project identified the 10 most-contaminated sites in the country. Four of these are located within EPA Region 4: the Allen Steam Station in North Carolina; the Allen Fossil Plant in Tennessee; the R.D. Morrow, Sr. Generating Station in Mississippi; and the Ghent Generating Station in Kentucky. According to the report, high levels of coal ash resulted in groundwater containing contaminants such as arsenic, beryllium, cadmium, sulfate, lead, and others. The Memphis-area Allen Fossil Plant is of particular note, as it sits directly above the Memphis Sand Aquifer which provides drinking water to the city. Groundwater around the plant has been found to contain levels of arsenic 30 times higher than is considered safe.

REGION 5 - IL, IN, MI, MN, OH, WI and 35 Tribes

Senior Housing site cleanup plan was approved with EPA-funded loan
Andrew Steele, Northwest Indiana Times, March 14, 2019
Summary by Daniel A. Fanning

The Northwest Indiana Regional Development Authority approved a plan to clean up property located at Main and Guthrie Streets in East Chicago. The plan includes a $650,000 loan from EPA. The U.S. Department of Housing and Urban Development’s Rental Assistance Demonstration program intends to use the site for 206 units of senior housing. Formerly, the property was the home of the Carson Manor and is partially-contaminated with dry cleaning chemicals. 

Ohio EPA issues violation for petroleum discharge to a Mahoning River tributary
Stephani Ujhelyi, The Alliance Review, March 12, 2019
Summary by Daniel A. Fanning

Last Valentine’s Day, neighbors reported a sheen on the tributary near a former T&W Forge plant in Alliance, Ohio that was being demolished by a City contractor, Jim Wallace Land Co., LLC (Jim Wallace). According to the Ohio EPA, the sheen constituted a visible impact to the tributary’s water quality and issued a violation to Jim Wallace for discharging approximately 200 to 300 gallons of petroleum product. Jim Wallace is slated to oversee the upcoming demolition of the Crest Rubber facility in Alliance as well. 

Flint awarded brownfield grant from Michigan DEQ
Michigan Department of Environmental Quality, March 19, 2019
Summary by Daniel A. Fanning

The $499,995 grant will help redevelop brownfield properties on Saginaw Street in Flint into housing and commercial development once environmental assessments, soil removal, and the installation of a vapor mitigation system have been completed. Norstar Development USA, L.P., plans to build 62 homes and commercial buildings. The current plan cost estimate is $21.6 million. The City of Flint will provide an additional $1,350,000 of funding.


Region 6 AR, LA, NM, OK, TX and 66 Tribes

New Mexico enacts transformational clean energy legislation
Megan Guess, Ars Technica, March 13, 2019
Summary by Calvin Dixon

The New Mexico legislature recently passed landmark legislation, the Energy Transition Act. This act commits New Mexico to receiving 100% of its energy from carbon free sources by 2045. New Mexico Governor, Michelle Lujan Grisham eagerly awaited to sign the bill, which included progressive benchmarks for 50% of the state’s energy mix be renewable by 2039 and 80 percent renewable by 2040. However, the bill did not impose a mandate that 100% of the state’s mix be renewable; the bill only required that electricity come from carbon free sources. The bill’s passage meant New Mexico must reduce its reliance on coal-generated electricity. Other states with similar legislation include California and Hawaii. 

New Mexico Supreme Court issues order fostering closing of power station
Kevin Robinson-Avila, Albuquerque Journal, March 1, 2019
Summary by Calvin Dixon

New Mexico’s Supreme Court ordered an emergency stay of the abandonment proceedings at the San Juan Generating Station. The Public Regulation Commission (“PRC”) and Public Service Co. (“PNM”) debated for some time over the closure of the plant. PNM (owners of San Juan) argued that it could not comply with a PRC order because they lacked basic information, such as a cost estimate for alternative energy sources to replace San Juan. Additionally, the PRC’s order might potentially conflict with the legislature’s recently-passed Energy Transition Act’s shutdown scheme which provides financing to cover the closing of San Juan. The state’s Supreme Court ordered both parties to complete responses by March 19th, which comes three days after the legislative session ended.

Tar Creek Superfund site gets renewed attention in collective cleanup efforts
Associated Press, March 13, 2019
Summary by Calvin Dixon

In a sign of its renewed cleanup efforts, EPA allocated more than $16 million for clean-up of toxic mine waste at Oklahoma’s Tar Creek Superfund site. The plan provided a comprehensive framework for how EPA, Oklahoma DEQ, the Quapow Nation, and the community would work to remediate the toxic mine waste over the next five years. EPA Administrator Wheeler re-acknowledged Tar Creek’s challenging status by placing it on the Administrator’s Emphasis List. Part of the framework included removing 5,000 acres of the site from the NPL and developing new watershed plans. Additionally, the plan called deploying technology and a reevaluation of land use after reclamation.

Region 7 IA, KS, MO, NE and 9 Tribal Nations

EPA requested public comment on proposed determination for Greenbrier Rail Services
EPA Public Notice, February 20, 2019
Summary by Brooke Sartin

The EPA opened the proposed determination of Corrective Action Complete Without Controls under RCRA for the Railcar of Nebraska Facility (Greenbrier Rail Services), located at 28th and N Street in Omaha, Nebraska for public comment. The facility’s owner/operator satisfied RCRA corrective action obligations after years of disposing paint drums onto the ground and burying the pain with sand.  Site assessment began in April 1994 and a determination that the site was not a threat to public health and safety was made in July 1995 by the Nebraska Department of Environmental Quality.  Greenbrier acquired the site in September 2006, greatly expanding operations.  Public comment ended March 21, 2019 on the proposed determination. 

Fifth five-year review completed for Charles City, Floyd County, Iowa Superfund site
EPA Public Notice, March 11, 2019
Summary by Brooke Sartin

The White Farm Equipment Co. Dump Superfund Site was deemed protective of human health and the environment in the EPA’s latest five-year review of the site. Five-year reviews are required by CERCLA after sites are exposed to hazardous substances and evaluate the site to determine if it is safe for human health and the environment. This review was the site’s fifth five-year review after the site was removed from the NPL in 1994.

Region 7 included in EPA 2018 FY announcement for Superfund accomplishments
EPA News Release, March 4, 2019
Summary by Brooke Sartin

EPA’s announcement for its 2018 Superfund accomplishments included some Region 7 highlights: (1) the EPA’s partnership with the Madison County, Missouri Health Department to use Superfund Job Training Initiative funds for training and employment opportunities for 24 people from the local community; (2) the addition of the Sporlan Valve Plant #1 site in Washington, Missouri to the Superfund National Priorities List; and (3) the partial deletion of 101 private properties from the Omaha Lead Superfund Site.


EPA sets long-term goals for Gold King Mine spill Superfund site
Daniel Elliot, The Denver Post, March 13, 2019
Summary by Vaishali Gaur

EPA announced three long-term goals for cleaning up the Bonita Peak Mining District Superfund site in southwestern Colorado. The EPA established the Superfund site after the EPA inadvertently triggered a massive spill of three million gallons of wastewater from the Gold King Mine in 2015. The spill tainted rivers in Colorado, New Mexico, and Utah with a yellow-orange plume carrying toxic metals. There are 47 additional mining-related sites included in the Superfund cleanup. The new goals aim to improve water quality in four sections of the rivers and streams; stabilize mine waste piles to keep more pollutants from leaching into waterways; and prevent large releases of tainted water from mine shafts. EPA also proactively outlined techniques to prevent waste sites from bleeding more contaminants into rivers, which include: stopping erosion of waste piles; blocking rain and snowmelt; removing waste rocks from stream banks; dredging sludge from settling ponds; and capping waste rock piles used by campers and hikers.

Anti-riot boosting bills for XL pipeline rushed through South Dakota Legislature
Summary by Vaishali Gaur

The governor’s bills to protect the Keystone XL pipeline won quick passage in the Republican-led state Legislature while the controversial project is awaiting construction. The bills would require pipeline companies to help pay extraordinary expenses, such as the cost of policing during protests, and aim to pursue money from demonstrators who engage in “riot boosting,” which includes encouraging violence during a riot. The legislation is the result of the large protests staged by opponents of the Dakota Access oil pipeline that resulted in 761 arrests over a six-month span and cost $38 million in protest policing.

Hunting groups sue Forest Service over controversial logging project in Helena National Forest
Tom Kuglin, Missoulian, March 20, 2019
Summary by Vaishali Gaur

On March 19, two hunting conservation groups filed suit in Montana federal court against the U.S. Forest Service, alleging it bypassed requirements in the National Forest Management Act and other laws when it approved the Ten Mile-South Helena Project last year. The project calls for thinning, logging, and burning on 17,500 acres of Helena National Forest to mitigate wildfire risks, improve firefighter safety, and protect city water infrastructure. Specifically, the lawsuit focuses on two roadless areas within the targeted acres and the impacts of logging on wildlife. Gayle Joslin, a board member of a plaintiff group, stated that the suit is an attempt to “sustain wildlife populations and opportunity for hunters, both immediately and in the long term.” The Helena-Lewis and Clark National Forest Supervisor expressed disappointment with the suit and claimed that the project is about “public health and safety, water for Helena, and trying to minimize intense fire behavior adjacent to and within the city.”

Region 9 – CA, HI, NV, AZ

California water districts conflict over Colorado River cutbacks
Jeff Daniels, CNBC, March 15, 2019
Summary by Matthew DeGioia

The Colorado River, which serves 40 million people across seven states and some 5 million acres of farmland, accounts for nearly 25% of the water needs of Southern California and, during recent droughts, contributed more than 50% to the region’s water supply. Seeing critically low water levels, the U.S. Bureau of Reclamation has put bordering states on a deadline to voluntarily agree to cutbacks. However, California’s Imperial Irrigation District, which has senior rights to the Colorado River, previously announced cuts earlier in the month, but also has sought to require the federal government to contribute $200 million for restoring the Salton Sea. For its part, California’s Metropolitan Water District of Southern California, which serves 19 million people including Los Angeles and San Diego, offered to bear most of the state’s water cutbacks. Still however, there is no grand compromise yet, and the states have until March 19, 2019 to agree to a plan to avoid federal intervention.

Controversial water transfer bill revived in Arizona House of Representatives
Elizabeth Whitman, Phoenix New Times, March 15, 2019
Summary by Matthew DeGioia

The Arizona House revived HB 2609, which would allow private water companies to tap into groundwater in the rural Harquahala Valley and transport it to urban areas in central Arizona, to address impending shortages on the Colorado River and an ongoing two-decade drought. The bill echoes a 1991 law which allows transfer of groundwater in the Harquahala Valley to other areas of the state. While central Arizona has not imported water from the Valley in thirty years, residents of the Valley are resistant to extending the privilege to allow private companies to profit off a statewide water shortage. In recent days, the bill has undergone several amendments, including preserving legal drilling depth in the Valley to 1,000 feet, and incorporating hydrographic data to ensure that enough water would remain in the Valley for the needs of its constituents in the event of water transfers. The bill has yet to receive enough votes to pass.

Forest Service denies oil and gas leases in the Ruby Mountains
Daniel Rothberg, The Nevada Independent, March 14, 2019
Summary by Matthew DeGioia

In response to pushback from environmental groups, USFS denied leasing to permit oil and gas exploration in about 53,000 acres of land in the Ruby Mountains, a popular backpacking spot and critical habitat for mule deer and the threatened Lahontan cutthroat trout. Despite being poised to open the mountain range to horizontal drilling, USFS issued its denial decision after receiving more than 14,000 comments on the project within the last year. Even if USFS had permitted leasing, it was unlikely that an oil and gas project would have been viable, as multiple petroleum geologists have reported little to no oil potential in the Ruby Mountains. Critics of the agency’s decision have 45 days to file a formal objection with the agency.

Churchill County receives $1.4 million for groundwater improvement projects
Staff Report, Nevada Appeal, March 14, 2019
Summary by Matthew DeGioia

The Nevada DEP granted Churchill County $1,405,075 for two groundwater improvement projects. The first involves septic-to-sewer consolidation of the Churchill Community Golf Course, for which the DEP allocated $330,075 in “principal forgiveness” funding. The second involves a septic-to-sewer consolidation of 25 residential homes in the county, for which it granted over $1 million in forgiveness funding. In addition to converting septic systems to sanitary sewers, the grants will assist the county in educating residents on proper maintenance of existing septic systems in an effort to protect its groundwater resources. 

Kahana Bay condos seek to restore West Maui shoreline
Lisa Kubota, Hawaii News Now, March 13, 2019
Summary by Matthew DeGioia

The Kahana Bay Steering Committee, which represents nine oceanfront condominiums threatened by shoreline erosion, proposed a new beach nourishment plan to counteract the effects of sea level rise, frequent storms and existing seawalls. The plan, called the Kahana Bay Erosion Mitigation project, calls for the widening of the existing beach by as much as 150 feet, using up to 100,000 cubic yards of sand from nearby offshore sites. The project may cost about $8 million, and the condominiums agreed to finance the entire project. It is currently undergoing environmental review and is projected to begin as early as the summer of 2020.



Oregon-based NuScale plans to build first small-scale nuclear reactors in Idaho
Cassandra Profita, Oregon Public Broadcasting, March 12, 2019
Summary by Ian Curry

NuScale Power announced that it is planning to build a 720 MW nuclear power plant at the Idaho National Laboratory site in Idaho Falls using 12 small modular reactors. The small modular reactors, which are designed by NuScale, each generate 60 MW, and the plant would overall produce a little more power than the average coal plant. NuScale said the project is moving along and expects to get its first license around 2023, but the plant would not be operational until 2026. The Utah Associated Municipal Power Systems would own the plant and contribute 25% ($2.8 billion) towards the project while Energy Northwest would operate the plant.

Portland General Electric, NextEra propose renewable energy facility that uses wind, solar, and battery storage
Dave Kovaleski, DailyEnergyInsider, February 19, 2019
Summary by Ian Curry

Portland General and NextEra are planning a new renewable energy facility in Morrow County, called the Wheatbridge Renewable Energy Facility, that will generate 300 MW of wind power, 50 MW of solar power, and provide 30 MW of battery storage. While the wind farm will begin operations by December 2020, the solar panels and battery storage are planned for 2021. The two companies will split ownership of the facility—Portland General will own 100 MW of wind power, while NextEra will build and operate the facility, as well as sell its output to Portland General under 30-year power purchase agreements.

Washington court requests supplemental briefing on CERCLA question of first impression
Emerald Kalama Chem., LLC v. Fire Mountain Farms, Inc., No. C17-5472 BHS, 2019 WL 1040409 (W.D. Wash. Mar. 5, 2019)
Summary by Ian Curry

Emerald Kalama Chemical, LLC filed a complaint against defendants, Fire Mountain Farms, Inc. (FMF) seeking to recover remediation costs under CERCLA Sections 107 and 113. Emerald operates a wastewater treatment plant in Kalama, Washington. The Kalama facility treats groundwater containing toluene and benzene which creates a sludge byproduct. Emerald paid FMF to accept the sludge. FMF, which operates three farms, mixed the sludge with biosolids for use as fertilizer. The Washington Department of Ecology (Ecology) issued an order to FMF to cease receiving and applying the sludge due to excessive nitrate levels in nearby soil and groundwater. Ecology then issued a CERCLA remediation order to both companies, and Emerald initiated the action to recover its costs from FMF. Considering cross-motions for summary judgment, the court requested supplemental briefing on Emerald’s Section 107 cost recovery claim. The court held that while necessary costs may be recovered if a hazardous substance presents an “actual and real threat to human health,” Ecology had retreated from its position that there was an actual and real threat to human health. Defendants argued that if Ecology’s initial determination was wrong, remediation costs were not necessary and therefore remediation costs cannot be recovered under Section 107. The court characterized the issue as one of timing, suggesting the necessity of the remediation should be evaluated at the time it was incurred, rather than based on a later determination. The court also dismissed Emerald’s 113 contribution claim because FMF was a party to the settlement with Ecology.