In its updated Clean Water Act Multi-Sector General Permit for stormwater discharges from industrial activities issued June 5, EPA has explicitly provided that non-stormwater discharges of any pollutants are not authorized and will either have to be eliminated or covered by a separate individual NPDES permit. Substantial litigation has occurred under the previous version of the industrial stormwater general permit, which did not contain the explicit ban, over whether a permittee is shielded from liability for pollutants not specifically listed in its coverage under the general permit. Under the Fourth Circuit’s landmark decision in Piney Run Preservation Association v. County… Read more
Tag: soday
The Energy /Water Connection and the Role of HB 57
SGR Partners Andy Thompson and Steve O’Day are scheduled to speak at the State Bar of Georgia Environmental Law Section Summer Seminar on July 24-25, 2015 at Hilton Head Island. Andy will speak on a “Current Events” panel and will address recent developments in the Clean Water Act Permit Shield Defense, and Steve will speak on a panel entitled “Water Supply and Energy Demand: Striking the Right Balance” and will address “The Energy/Water Connection and the Role of HB 57.”
Vapor Intrusion Guidance Issued by EPA
On June 11, EPA released two long-awaited guidance documents on addressing the potential for vapor intrusion at contaminated sites. Vapor intrusion is the potential for vapors from groundwater contamination to enter occupied buildings. One guidance document, EPA’s “Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources,” applies to all sites being investigated under cleanup programs such as Superfund, RCRA corrective action, and state-led Superfund sites. It applies to contaminants other than petroleum, to mixed petroleum and other contaminant sites, and to petroleum contamination sites other than underground storage tanks (USTs). It can be found here…. Read more
Chemical Safety Alert On Implementation of “Inherently Safer Technology” Issued by OSHA and EPA
On June 9, the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) issued an alert containing agency guidance for voluntary measures that can be taken to reduce risks and improve safety at chemical plants. The alert is the first step in a three-step process outlined to implement Executive Order (EO)13650, issued by President Obama on August 1, 2013, in response to the fertilizer plant explosion in West, Texas that killed 14 people and injured about 200 others. The next two steps will be formal agency guidance and then, after consideration of feedback from the alert and… Read more
Nanomaterials: Comments on Proposed Data Collection Rule Due July 6
EPA released a significantly revised proposed data collection rule under Toxic Substances Control Act (TSCA) Section 8(a) for nanomaterials on April 6 and is accepting comments on the proposed rule until July 6. The rule would establish a one-time reporting requirement of data on nanomaterials meeting the specifications of the rule, due 6 months after issuance of the final rule. If a company intends to manufacture a substance that would have been subject to the reporting requirement but does not begin manufacture until after the effective date of the rule, it would have to submit its data at least 135… Read more
A Win for Solar Energy in Georgia: The Solar Power Free-Market Financing Act Becomes Law
On May 12, 2015, Georgia took a giant leap forward in the development of distributed solar power in the state, outpacing all other states in the region. With the enactment of HB 57, The Solar Power Free-Market Financing Act of 2015, signed into law today, Georgia becomes the first state in the Southeastern U.S. to legislatively approve private sales of electricity from onsite solar systems as a means of financing solar energy for Georgia businesses, institutions, schools, and homes. The forward-thinking legislators in Georgia’s General Assembly, led by the bill’s sponsor, Representative Mike Dudgeon (R-Johns Creek), recognized that the ability… Read more
EPA Environmental Appeals Board: No Statute of Limitations on Failure to Report Under TSCA
Although the chemical industry appellant, Elementis Chromium Inc., prevailed in its appeal of a $2.5 million penalty under the Toxic Substances Control Act (TSCA), a ruling by EPA’s Environmental Appeals Board (EAB) indicates that violations of Section 8(e) of TSCA are continuing, and therefore not subject to the general 5-year federal statute of limitations. In re: Elementis Chromium Inc., March 13, 2015. EPA initiated an enforcement action against Elementis for its failure to send EPA a 2002 industry study showing increased risk of lung cancer to workers exposed to hexavalent chromium (Cr6). EPA contended that Section 8(e) of TSCA, which generally… Read more
Land Deposition of Air Pollutants Constitutes Disposal of Hazardous Waste
Disagreeing with a decision by the Ninth Circuit Court of Appeals, the U.S. District Court for the Southern District of Ohio, Judge Algenon Marbley, ruled on March 10 that the deposition on land of perfluorooctanoic acid (C8) on a well field owned by a rural water district constitutes disposal of hazardous waste under the Resource Conservation and Recovery Act (RCRA). Contamination of soil and groundwater from such deposition thus can be addressed in an RCRA citizens suit if shown that it is an imminent and substantial endangerment to human health or the environment. The Little Hocking Water Association, et al… Read more
Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution
A June 13 ruling by the Iowa Supreme Court highlights a recent trend in environmental litigation: lawsuits against regulated entities asserting state law public nuisance claims for air pollution. In 2011, the U.S. Supreme Court held unanimously that the Clean Air Act preempts federal common law nuisance claims against a utility for emissions of greenhouse gases. American Electric Power v. Connecticut, 564 U.S. ___ (2011). Since then, litigants have sued power utilities and other entities with Clean Air Act permits under the state common law of nuisance in various states. In 2010, the Fourth Circuit Court of Appeals held that the… Read more
Iowa Supreme Court Decides That Solar Power Provider Is Not a Public Utility and Not Governed by Exclusive Territorial Restrictions
In a case closely watched nationwide, the Iowa Supreme Court last Friday, July 11, affirmed a lower court decision allowing the use of power purchase agreements (PPAs) to finance the installation of photovoltaic (PV) solar energy facilities. SZ Enterprises, Inc., d/b/a Eagle Point Solar v. Iowa Utilities Board (IUB), a Division of the Department of Commerce, State of Iowa, Iowa Supreme Court No. 13-0642 (July 11, 2014). Because of the significant upfront cost of installation of solar panels on residences and businesses, solar energy providers commonly absorb the upfront installation cost and recoup their investment through sale of the electricity produced… Read more