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Cheap gas prices driven by a boom in new shale gas development, coupled with more stringent emissions controls for coal fired plants, are causing a shift from coal to natural gas as the primary source of electric power in the United States. In the short term, most welcome this shift because natural gas produces significantly fewer greenhouse gas (“GHG”) emissions. But it appears increasingly certain that in the long run, this shift will result in decreased energy grid reliability and significantly higher electricity costs due to natural gas price volatility.

If you manage or perform renovations, repairs, or painting activities on the exterior or interior of public building or commercial buildings, you should be aware that EPA is currently evaluating whether and how to regulate such activities in public buildings or commercial buildings constructed before 1978 that pose lead-based paint hazards. On Monday, May 13, 2013, EPA issued a notice in the Federal Register that it is seeking public comment on this topic until July 12, 2013, and will host a public meeting at EPA’s headquarters on June 26, 2013.

On May 9, 2013, the former president of Port Arthur Chemical and Environmental Services, LLC, pleaded guilty to violating the Occupational Safety and Health (OSH) Act and making a false statement, following the death of an employee by asphyxia and poisoning due to hydrogen sulfide inhalation and the death of a second employee who died from a heart attack associated with the chemical exposure.

OSHA has issued nine serious safety violations to First Choice Energy of Minot, North Dakota, following an employee fatality after the worker was caught in the agitator of an oil-field vacuum truck storage tank.

Effective April 17, 2013, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) has revised its maximum and minimum civil penalties for violations of the federal hazardous material transportation law (“HazMat”) for violations occurring on or after October 1, 2012.

One of the largest food production companies in the world has agreed to resolve violations of EPA’s Risk Management Program (RMP), Clean Air Act Section 112(r), 40 CFR Part 68, stemming from failures associated with its storage and management of the refrigerant anhydrous ammonia. As part of a federal Consent Decree currently subject to public comment until May 10, 2013, Tyson Foods, Inc., is agreeing to pay a $3.95 million civil penalty and fund a $300,000 Supplement Environmental Project (SEP) through the purchase of emergency response equipment.

On April 15, 2013, EPA made available to the public its highly anticipated guidance documents on vapor intrusion. Both documents are external review drafts subject to further review and revision, and they may not be adopted at all. EPA is seeking public input and comment between April 16 and May 24, 2013. The first document, “OSWER Final Guidance For Assessing And Mitigating The Vapor Intrusion Pathway From Subsurface Sources to Indoor Air – External Review Draft” is a general guidance for all compounds. Separately, EPA is also seeking comment on its guidance regarding petroleum hydrocarbons released from underground storage tanks, “Guidance For Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites – External Review Draft.”

On April 4, 2013, the Fourth Circuit handed down its much-awaited decision about what a bona fide prospective purchaser (BFPP) of contaminated property must do to retain the Brownfields defense to Superfund liability. In PCS Nitrogen Inc. v. Ashley II of Charleston LLC, No. 11-2087, slip op. at 31 (4th Cir. April 4, 2013), the Court held that a property redeveloper, Ashley II, was liable as a current owner potentially responsible party (PRP) for soil contamination at the former phosphate fertilizer plant despite its “all appropriate inquiry” pre-purchase investigation of past environmental conditions at the facility. Ashley II knew that old sumps at the property contained contaminated water, yet for years did nothing to clean out or close the sumps. This failure to stop a continuing release violated the post-purchase “due care” or “reasonable steps” requirements of the BFPP defense, and negated its applicability to Ashley II.

Recently the United States Fish & Wildlife Service (“FWS”) issued a proposal to list the Lesser Prairie Chicken (“LPC”) as “threatened” under the Endangered Species Act (“ESA”). The listing of the LPC will have significant impacts on the current and future operations of the wind energy and oil & gas development industries.

On March 25, 2013, the U.S. Court of Appeals for the Eighth Circuit sent a clear message to the EPA and other federal agencies: guidance documents and interpretive memoranda do not qualify as APA-compliant rulemaking. Iowa League of Cities v. EPA, slip op. No. 11-3412 (8th Cir. March 25, 2013).

Businesses and companies that generate solvent-contaminated shop towels, rags, and industrial wipes know all too well the challenges associated with the RCRA hazardous waste management and disposal requirements of used solvent-contaminated rags. Those facilities awaiting clarity and reduced housekeeping burdens through proposed EPA exemptions (first proposed nearly 10 years ago) are going to have to wait a little longer, at least until October 2013. The final rule was originally slated to be released in fall 2012.

A recent decision by the United States Supreme Court could have significant ramifications on governments this Spring as seasonal flooding is just around the corner. In the case of Arkansas Game and Fish Commission v. United States, 133 S.Ct. 511 (2012), the Court considered whether, and under what circumstances, temporary flooding induced by the government can constitute a taking of property. The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use, without just compensation. The issue in the Arkansas Game and Fish Commission case was whether or not temporary flooding caused by the United States Army Corps of Engineers constitutes a taking of private property. In particular, the Corps authorized flooding that destroyed 18 million board feet of timber on forest land owned by the Arkansas Game and Fish Commission.

On March 4, 2013, EPA published “Draft Guidance for PM2.5 Permit Modeling” (“Draft Guidance”) and a series of questions and answers (“Q&A”) in response to the D.C. Circuit Court’s decision on PM2.5 SILs and Significant Monitoring Concentration (“SMC”), Sierra Club v. EPA, ___ F.3d ___, 2013 WL 216018 (D.C. Cir. Jan. 22, 2013). The Court’s decision vacated and remanded the PM2.5 SILs regulations for further consideration and vacated the PM2.5 SMC. These regulations provided PSD permit applicants exemptions from certain preconstruction modeling and ambient air monitoring requirements for PM2.5. The Court rejected the PM2.5 SILs and SMC rules on the grounds that the exemptions did not provide the permitting authority sufficient discretion to determine whether there would be an exceedence of the National Ambient Air Quality Standards (“NAAQS”). For a discussion of the Sierra Club decision, see “PSD Permit Modeling for PM2.5 – EPA Seeking Input Following Federal Court Remand of SILs Permit Exemption.”

Employers subject to OSHA’s Hazard Communication Standard (HazCom), 29 CFR 1910.1200, should already be well aware of the major changes pending to OSHA’s HazCom Standard as a result of revisions in 2012. While compliance with the technical aspects do not take effect until June 1, 2015, employers must train employees on the new labeling requirements and format for Safety Data Sheets by no later than December 1, 2013. In an effort to assist employers with that training and in understanding the new labeling and pictogram requirements, OSHA recently published guidance materials in February 2013 on the new HazCom labeling and training requirements.

On January 22, 2013, the D.C. Circuit Court of Appeals vacated and remanded to the EPA for reconsideration portions of two Prevention of Significant Deterioration (PSD) regulations setting Significant Impact Levels (SILs) and Significant Monitoring Concentrations (SMC) for fine particulate matter, PM2.5. Sierra Club v. U.S. Environmental Protection Agency, __ F.3d __, 2013 WL 216018 (D.C.Cir. Jan. 22, 2013) (No. 10-1413). These rules establish screening tools to exempt PSD permit applicants from having to conduct extensive site specific modeling to demonstrate compliance with the National Ambient Air Quality Standards (NAAQS) and site specific pre-construction monitoring, respectively for PM2.5. 75 Fed. Reg. 64, 864 (Oct. 20, 2010).  As a result of the court’s action, permits pending issuance that relied on these screening tools may be subject to additional review and, as discussed further below, EPA is seeking input based upon a notice the agency issued on February 6, 2013, regarding the impact of the court’s decision. 

Since 1985 the Kansas Department of Health and Environment (KDHE) has administered the RCRA hazardous waste management program in Kansas through a delegation of authority from EPA. 50 Fed. Reg. 40377 (Oct. 3, 1985). KDHE’s delegated authority, however, has never included RCRA’s Corrective Action requirements. But that may be about to change as KDHE is in the process of seeking authorization to implement the Corrective Action program in lieu of EPA.

In March 2013, EPA will begin the process for evaluating whether to clarify and make the RCRA hazardous waste regulations more effective for managing waste retail products. According to EPA’s notice, “Retailers face uncertainty in managing the wide range of retail products that may become wastes if unsold, returned, or removed from shelves for inventory changes. Because of the wide range of products that can become waste, retailers find it difficult to comply with the RCRA hazardous waste regulations that were designed for manufacturing and other types of industry wastes.”

On February 7, 2013, EPA launched a new interactive transparency tool as part of its Enforcement and Compliance History Online (ECHO) database intended to provide information about the performance of state and EPA enforcement and compliance programs across the country. According to EPA, the “dashboards and maps include state level data from the last five years and provide information including the number of completed inspections, types of violations found, enforcement actions taken, and penalties assessed by state.”

On January 28, 2013, EPA issued a notice in the Federal Register, 78 Fed. Reg. 5799, requesting comments on whether the agency should extend the current six national enforcement initiatives for another three years. Comments must be received on or before February 27, 2013.

On January 3, 2013, a general contractor for the Oregon Department of Transportation, Granite Construction Co., settled allegations of Clean Water Act stormwater permit discharge violations for $735,000.  The settlement is currently subject to a 30-day comment period as reflected in the January 18, 2013, federal register notice.