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Ninth Circuit Rules Air Emissions do Not Constitute Disposal of Solid Waste

Posted By Peter A. Watson, Wednesday, October 8, 2014
On August 20, 2014, the Ninth Circuit Court of Appeals, in Ctr. for Cmty. Action v. BNSF Railway Co., held that emissions of diesel particulate matter do not constitute the "disposal" of solid waste. Plaintiffs sought to enjoin the emission of particulate matter found in diesel exhaust originating from locomotive and truck engines on defendants' rail yards and cited EPA studies identifying diesel particulate matter as a carcinogenic, toxic contaminant. The district court dismissed the case, concluding that Plaintiffs failed to state a claim because diesel exhaust is not a "solid or hazardous waste" under the Resource Conservation and Recovery Act and rail yards are not regulated by the Clean Air Act. In support of its decision, the Court cited a history of decisions by Congress and EPA not to regulate diesel emissions at railroad yards. 

Tags:  Air Emissions  Cmty. Action v. BNSF Railway Co.  EPA  Resource Conservation and Recovery Act  solid waste 

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EPA Extends Renewable Fuel Standard Compliance Deadline

Posted By Gabe Ridley, Wednesday, October 8, 2014
For the third time, EPA has extended compliance reporting deadlines for the 2013 renewable fuel standards. On August 8, 2014, EPA announced in the Federal Register that 2013 compliance reports will not be due until after the EPA issues its final 2014 standards. The reports were originally due on February 28, 2014. EPA extended the deadline because it has failed to issue the 2014 standards, which were due November 30, 2013. EPA noted that parties need to know what the 2014 compliance requirements will be before having to demonstrate compliance with the 2013 standards. 

Tags:  compliance requirements  EPA  renewable fuel standards 

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EPA Considering Changes to Risk Management Program

Posted By Gabe Ridley, Wednesday, October 8, 2014
In August 2013 - four months after the West Fertilizer Company explosion in West, Texas - President Obama issued Executive Order 13650, directing regulatory authorities to look at methods for improving chemical facility safety. In response to this order, the EPA is proposing to amend the Risk Management Program regulations promulgated under Section 112 of the Clean Air Act. These regulations provide guidance for chemical accident prevention by requiring sources with more than a "threshold quantity" of a listed "regulated substance" to develop and implement a Risk Management Plan (RMP). On July 31, 2014, the EPA published a Request for Information in the Federal Register seeking public input on a proposed rule that would 1) increase the list of regulated substances covered under the RMP program, 2) adjust the threshold quantities for certain listed substances, and 3) require greater cooperation between industries and local emergency responders. These changes could bring new facilities within the program's scope and increase the regulatory burden on facilities already covered. Comments are due by October 29, 2014.

Tags:  EPA  executive order  texas case  West Fertilizer Company explosion 

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Buffer Issue Headed to Georgia Supreme Court

Posted By John Eric Schleicher, Wednesday, October 8, 2014
On September 22, 2014, the Georgia Supreme Court granted a writ of certiorari to review a July 16 decision by the Georgia Court of Appeals regarding the Georgia Erosion and Sediment Control Act's requirement to maintain buffers along all state waters. Director of the Georgia Environmental Protection Division v. Georgia River Network, et. al., Case No. S14C1781 (Sept. 22, 2014). The question accepted for review is whether the Court of Appeals erred in interpreting the Act "to require a 25-foot buffer on all state waters regardless of whether those waters are edged by wrested vegetation." 

Tags:  Georgia Environmental Protection Division  Georgia Erosion and Sediment Control Act  Georgia River Network  supreme court  writ of certiorari 

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SCOTUS Environmental Decisions

Posted By Richard Glaze, Vice Chair/Chair-Elect, Wednesday, September 17, 2014
Environmental Protection Agency v. EME Homer City Generation

On April 29, 2014 the Supreme Court, in a 6-2 opinion written by Justice Ginsburg, reversed the D.C. Circuit and held that the EPA's interpretation of the Clean Air Act's Good Neighbor Provision was permissible. In Environmental Protection Agency v. EME Homer City Generation, a group of state and local governments and industry and labor groups petitioned for review of EPA's Cross-State Air Pollution Rule (Transport Rule). The Transport Rule required reductions of nitrogen oxide and sulfur dioxide emissions in 28 upwind states to achieve downwind attainment of the national ambient air quality standards. The Court decided EPA may consider a cost-effective allocation of reducing emissions among the upwind states. 

Tags:  air quality standards  EME Homer City  environmental protection agency  EPA  nirtogen oxide 

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SCOTUS Environmental Decisions

Posted By Richard Glaze, Vice Chair/Chair-Elect, Wednesday, September 17, 2014
CTS Corp. v. Waldburger
 
The Supreme Court also ruled in June, in CTS Corp. v. Waldburger, that although CERCLA supersedes state statutes of limitation, it does not supersede state statutes of repose, which are similar in effect to statutes of limitation, but are not specifically mentioned in CERCLA. This meant the plaintiff, who discovered contamination in his well water and brought a nuisance action after North Carolina's 10-year statute of repose had passed, was without state-law tort recourse for his environmental harms. This case may have far-reaching effects on potential defendants and victims of contamination and hazardous waste in states with applicable statutes of repose. The case was decided 7-2 with Justice Kennedy writing the opinion. 

Tags:  contamination  CTS  EPA  Waldburger  waste  well water 

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SCOTUS Environmental Decisions

Posted By Richard Glaze, Vice Chair/Chair-Elect, Wednesday, September 17, 2014
Utility Air Regulatory Group v. Environmental Protection Agency

On June 23, 2014, the Supreme Court upheld EPA's authority to regulate greenhouse gas emissions, while also ruling that EPA overreached in interpreting its power under the Clean Air Act. The case, Utility Air Regulatory Group v. Environmental Protection Agency, was a challenge by various industry groups, states, and interest groups to EPA's greenhouse gas regulations, including the Tailoring and Timing Rules. Certiorari was granted by the Supreme Court to decide if EPA permissibly determined that greenhouse gases could be regulated under the Clean Air Act's PSD and Title V programs. The case was decided 9-0 with Justice Scalia writing the opinion. 

Tags:  clean air act  environmental protection agency  EPA  greenhouse gas  utility air 

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Clean Power Plan Proposal

Posted By Richard Glaze, Vice Chair/Chair-Elect, Wednesday, September 17, 2014
EPA released proposed Clean Air Act regulations on June 2, 2014, to set carbon pollution limits for existing United States power plants, which are the largest source of carbon pollution in the United States. Entitled the "Clean Power Plan" proposal, the rule would reduce carbon dioxide emissions from power plants nationwide by 30 percent below 2005 levels by 2030. EPA hosted public hearings on the proposed rule in Atlanta on July 29th and 30th. Interested parties were given an opportunity to comment on EPA's proposed action. The written comment period is open until October 16, 2014.  

Tags:  carbon pollution  clean air act  environmental  EPA  power plants  regulations 

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