The Minnesota Court of Appeals ruled this week that a mine’s “synthetic minor” air emissions permit failed to address contentions attributed to its parent company’s public securities filing that some said suggested the mine might not comply with the permit’s output restrictions. The court ruled the Minnesota Pollution Control Agency (“MPCA”) must make additional factual findings to address those contentions and issue a revised decision to support its conclusion that PolyMet Mining Inc. (“PolyMet”) is anticipated to comply with the terms of its synthetic minor source permit.
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”). This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U). The text of the ETS, as submitted to the Office of the Federal Register, is available here. OSHA also launched a website with resources regarding the ETS.
Three air quality modeling staff ask the EPA Inspector General to investigate
In a letter to the U.S. Environmental Protection Agency (EPA) dated March 30, 2021, three self-styled “whistle blowers” who serve as air quality modelers working in the Air Pollution Control Division (APCD) of the Colorado Department of Public Health and Environment (CDPHE) asked EPA’s Inspector General, Sean W. O’Donnell, to open an investigation into policy decisions made by the agency. See letter here.
At Issue? Impacts on 10 million acres of public lands
On May 11, 2021, the Bureau of Land Management (BLM) announced it will take another look at its greater sage grouse conservation plans and the agency’s process related to the possible withdrawal of up to 10 million acres of habitat from mineral location and entry. See the BLM announcement here.
The agency’s long-delayed announcement comes after two federal court judges ordered the agency to re-think its plans: (1) a May 2020 federal Court’s decision in Montana vacating oil and gas lease sales on BLM lands in Wyoming and Montana [see opinion here], and (2) a February 2021 federal Court’s decision in Idaho that vacated the Trump administration’s decision to stop withdrawal of millions of acres of public lands for mineral development [see opinion here]. The focus of the courts’ opinions is BLM’s management plans that were designed to support sagebrush ecosystems on which sage grouse rely.
The Prospective Claims: States “Impermissibly” Impede the Export of Wyoming Coal and Force Closure of Coal-Fired Power Plants
Colorado (as only one example of many states) is working to reduce its reliance on coal and other fossil fuels for its electricity and transportation needs. Colorado plans to transition to 100 percent clean electricity generation by 2040 and rapidly expand the electrification of vehicles.
Manufacturers, suppliers, retailers, and other entities in supply chains for consumer products sold in California might soon need to provide warnings regarding certain per- and polyfluoroalkyl substances (PFAS) in their products. California’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced its intent to further regulate and study certain per- and polyfluoroalkyl substances under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Proposition 65 prohibits companies from knowingly exposing California consumers to chemicals “known to cause cancer or reproductive toxicity” (i.e., “listed chemicals”) in consumer products without first providing a “clear and reasonable warning.” (Although not the focus of this article, Proposition 65 also addresses occupational and environmental exposure to listed chemicals.)
Businesses that own and operate industrial facilities in Harris County, Texas, should be aware of recent efforts by the Harris County Fire Marshal’s Office (HCFMO) to ensure that these facilities have obtained proper permits and certificates of compliance for construction and development projects for energy infrastructure and related operations. Failure to obtain the necessary permits and certificates of compliance presents the attendant risk of an enforcement case with the issuance of a notice of violation and potential shutdown of all operations.
Although other states and parties tried, Colorado was the only state that succeeded in persuading a U.S. District Court Judge to enter a preliminary injunction against enforcement (in Colorado only) of the new waters of the United States (WOTUS) rule which was published nearly a year ago, i.e., April 21, 2021. After being on appeal for several months, the Tenth Circuit Court of Appeals expressed its displeasure with that ruling. In State of Colorado v. U.S. Environmental Protection Agency et al., case number 20-1238, Judge Baldock, in his March 2, 2021 opinion, was direct and to the point:
EPA on February 22, 2021, announced new steps to address PFAS (per- and polyfluoroalkyl substances) in drinking water. These actions will collect new data on the presence of PFAS in drinking water and could lead EPA to establish maximum contaminant levels, commonly known as MCLs, for these substances under the Safe Drinking Water Act (SDWA).
On December 16, 2020, a cold storage warehouse and ice manufacturing facility in East Providence, Rhode Island, entered into a guilty plea with the Justice Department for a “knowing” criminal violation of Clean Air Act section 112(r)(7), 42 USC 7412(r)(7), in connection with EPA’s Chemical Accident Prevention Program and requirement to submit a risk management plan (RMP) under 40 CFR Part 68. The facility used a refrigeration system to manufacture and store ice and other frozen products, with 19,000 pounds of anhydrous ammonia in the refrigeration process.