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Asbestos: Five myths

5 Jul

In many respects asbestos has been a victim of its success.  In the early 20th century, asbestos was considered a wonder substance that had several uses and was very inexpensive.  The most common uses were as an insulator and as ingredient in building materials to provide a degree of fire resistance.  In many parts of the US with older building stock (e.g., Chicago), you can still find numerous residential buildings with asbestos siding and asbestos mixed into the plaster.  Many older commercial buildings still have asbestos containing plaster.  Asbestos is also resistant to chemical damage and was used very frequently in chemistry lab benches (yes, even your high school lab) and other surfaces that were in regular contact with corrosive chemicals.  Asbestos is also very effective at absorbing sound.  Many older, metal kitchen sinks have asbestos coating on the underside, not to provide insulation, but to minimize the noise from water hitting the sink.  As a result, asbestos was ubiquitous.

Unfortunately, it wasn’t until much later that efforts were taken to limit exposure to asbestos to minimize the risks of mesothelioma, a rare form of cancer caused by inhaling microscopic asbestos fibers.  In part, this was because there is a 20-30 latency period between the exposure to asbestos and the development of mesothelioma.  Another reason, at least for those not directly involved in the manufacturing of asbestos, was that it took years for asbestos containing materials to degrade sufficiently to release the asbestos fibers into the air and, it follows, for people to inhale these fibers.  Finally, information obtained during asbestos litigation established that many asbestos companies knew of the danger, but did not inform the public.

While almost everyone is familiar with asbestos, most people have misconceptions regarding asbestos.  Here are five of the most common:

1) Asbestos is banned.  Many asbestos containing products are still manufactured and legal to use.  US EPA banned asbestos products in 1989, but this rule was overturned in 1991.  Under the Toxic Substances Control Act, only the bans on corrugated paper, rollboard, commercial and specialty paper, and flooring felt as well as any new uses remain.  Under the Clean Air Act, spray applied asbestos is banned as well as asbestos for pipe insulation and block insulation on facility components (e.g., boilers), if the materials are either molded and friable or wet-applied (and friable after drying).  Under the Consumer Product Safety Act, asbestos in artificial fireplace embers and wall patching compounds is banned.

2) Asbestos must be removed.  In reality, asbestos can be remain in place or even be added to a building, see 1 above.  In many instances, the owners of buildings are required to conduct an asbestos study to determine the presence of asbestos containing materials, monitor it over time, provide appropriate legal notices, and train individuals who may be exposed to asbestos.

3) Building owners do not need to label asbestos containing materials.  In truth, not every asbestos containing item must be labeled, otherwise you could imagine a ridiculous situation requiring several thousand asbestos containing floor tiles in a building needed to be labeled.  That being said, the building owner does need to provide notice and can often bee done fairly unobtrusively in an entrance area.

4) I do not need to train my custodial staff.  Many levels of asbestos training exist and while custodial staff may not need high level training, they may need awareness training because they come into contact with asbestos.  For example, they may come across a broken floor tile or ceiling tile that contains asbestos.  It is also worth noting that if your custodial staff undertakes more than simple custodial actions and engages in maintenance, they may well need additional training.

5) The contract for my new construction guarantees there was no asbestos used.  Upon closer inspection, most architectural contracts state that no asbestos containing materials were specified for the project.  That is not to say that they were not used, it simply means they were not required to be used.  Again, as pointed out above, asbestos is not banned.

If you have questions about asbestos, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

 

D.C. battle over EPA Administrator nomination & the future of the D.C. Circuit

10 Jun

Gina McCarthy was nominated to take over as US EPA Administrator over three months ago. Last month her nomination passed out of the Senate Environment and Public Works Committee to the full Senate for a vote. Needless to say, the leadership of EPA is a source of contention between Republicans and Democrats. As a result Republican senators have been delaying McCarthy’s confirmation vote.

Another set of less obvious nominations that may have even more significant environmental repercussions was made last week. President Obama nominated Robert Wilkins, Nina Pillard, and Patricia Millett for the US D.C. Circuit Court of Appeals. Since federal agencies are typically sued over proposed regulations in the D.C. Circuit, the D.C. Circuit is a prime battleground for US EPA regulations. In fact, these appointments may be especially important as federal judges are appointed for life, unlike agency administrators who typically last only as long as the President who nominates them, if that long. The judges whose change to Senior Status in the Court of Appeals created two of the three vacancies served for 25 and 26 years. The third vacancy was created when John Roberts was elevated to the Supreme Court. Currently, the D.C. Circuit has four judges selected by Republic Presidents (three judges selected by George W. Bush and one by George H.W. Bush and four judges selected by Democratic Presidents (three by Bill Clinton and one by Barack Obama).

If you have questions about these appointments or how to make your voice heard, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Ethanol gas standard in jeopardy?

7 Sep

This summer’s drought has caused livestock feed prices to soar and livestock producers are feeling the heat on their bottom lines as well.  In order to lower feed prices, producers are asking the U.S. EPA to waive the Renewable Fuels Standards, which requires 13.2 billion gallons of ethanol to be added to gasoline this year.  If past years are any indication, they shound not expect any action from the agency.  For example, in 2008 the EPA did not issue a waiver even though corn prices rose due to increased fuel, fertilizer and other costs.

If you have questions about the Renewable Fuels Standard, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

How are greenhouse gas emissions from stationary sources regulated under the Clean Air Act?

10 Apr

Whenever someone asks why greenhouse gases are regulated under the Clean Air Act the automatic answer is “because the Supreme Court said so in Massachusetts v. EPA.”  While that is true, it takes additional steps to explain why greenhouse gas (GHG) emissions from stationary sources are regulated under the Clean Air Act.  After all Massachusetts v. EPA was a case involving mobile sources under Title II of the Clean Air Act and not stationary sources under Title I of the Clean Air Act.  Ultimately, the answer is found in the EPA’s regulatory definition of a regulated new source review pollutant.  As defined in the code of federal regulations, a regulated NSR pollutant is a 1) a criteria pollutant for which a NAAQS has been established, 2) a pollutant subject to a standard under Clean Air Act Section 111 (new source performance standards, NSPS), 3) a pollutant regulated under Title VI (stratospheric ozone protection),  and 4) ” any pollutant that otherwise is subject to regulation under the Act.”

The Supreme Court in Massachusetts v. EPA required EPA to determine under CAA Section 202(a) whether GHGs from automobiles caused or contributed to air pollution which endangered public health or welfare.  On December 9, 2009, EPA determined that six individual GHGs and classes of GHGs endangered human health and welfare, and determined that automobiles released four of these six GHGs.   Pursuant to this determination, EPA promulgated light duty truck standards and heavy duty truck standards in May of 2010 and August of 2011, respectively.  Having passed these standards, GHGs were now “pollutant[s] subject to regulation under the Act” and now subject to regulation under NSR.  That being said, these standards were written to cover production years 2012-2016 for light duty vehicles and 2014-2018 for heavy duty trucks.  Presumably, if these standards were not extended or not rewritten to include GHGs, GHGs would no longer be regulated under NSR.

If you have followed recent US EPA proposed regulations, you may remember that EPA has proposed new source performance standards (NSPS) for utilities that cover GHGs (see our recent blog entry).  While, arguably, the best demonstrated technology standard for NSPS is not extremely onerous, promulgating a NSPS that regulates GHGs provides yet another hook for EPA to regulate GHGs since the definition of a regulated NSR pollutant includes a pollutant subject to Clean Air Act Section 111 (NSPS).  In other words, EPA appears to be reinforcing its authority to regulate GHGs under NSR.

If you have any questions regarding GHGs or the Clean Air Act, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Greenhouse Gas Performance Standards for New Stationary Sources

4 Apr

On March 27, 2012, Lisa Jackson (the EPA Administrator) signed a notice that the agency will propose a new rule to implement Greenhouse Gas (GHG) performance standards for new electric utility generating units which the agency has dubbed a “Proposed Carbon Pollution Standard for New Power Plants.”  The proposed regulation has not yet been published in the Federal Register and, thus, the notice period for comments has not commenced.  That being said, EPA has already made the draft language publicly available as well as provided summary fact sheets.

As noted above, the rule would only apply to new plants and would not apply to currently operating and newly permitted plants that begin construction over the next year.  Furthermore, the plant would only apply to fossil-fuel electrical utility generating units (EGUs), inlcuding fossil-fuel-fired boilers, integrated gasification combined cycle units and stationary combined cycle turbine units that generate electricity for sale and are larger than 25 megawatts.  Thus, EGUs burning other fuels, such as biomass would not be regulated under this rule.

EPA is considering an output-based standard of 1,000 lbs of CO2 per megawatt-hour.  The agency notes that approximately 95% of new natural gas combined cycle power plants already meet this standard without additional emissions controls.  Power plants utilizing coal would require some sort of carbon capture and storage, although this would not impose an additional burden upon utilities in states that already include carbon capture and storage (including Montana and Illinois).

In order for facilities to implement and optimize their control technology, EPA is proposing to allow facilities to use their 30-year average CO2 emissions to determine compliance.  Utilizing a 30-year average instead of an annual standard would allow new facilities time to tweak the performance of their equipment since initial emissions exceedences could be offset by subsequent compliance.

If you have any questions regarding the Proposed Carbon Pollution Standard for New Power Plants or other environmental regulation of utilities, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Uranium: A new issue for Coal Ash Ponds and Coal Combustion Residue?

3 Apr

Coal Combustion Residues (CCR) have received a lot of bad press over the past few years, despite many beneficial uses, and it may be getting worse.  CCR covers the variety of by-products from coal burning electric utilities, including flue gas desulfurization, coal slag, bottom ash and fly ash.  CCR is often beneficially reused.  For example, CCR can be added to concrete, simultaneously creating a more durable product and reducing the amount of Portland cement required.  This is environmentally beneficial because 1) the product is more durable, 2) the CCR does not have to be disposed of in a landfill or impoundment, and 3) less Portland cement, the production of which has negative impacts on the environment, is needed.  Likewise, FGD gypsum, which is generated from the scrubbing process at coal-fired power plants, can be used in lieu of naturally occuring rock gypsm for drywall.  In fact, over half of the drywall in the US is made this way, again saving disposal space.  Unfortunately, not all CCR is beneficially reused and much of it is diposed as a solid or as a slurry in an impoundment.

The disposal practices for CCR, especially in slurry impoundments, have come under increasing scrutiny because of several accidents over the past few years. The most notorious event occured on December 22, 2008, when a CCR surface impoundment was breached at the TVA Kingston Fossil Plant in Tennessee which released 5.4 million cubic yards of coal ash.  The spill covered over 300 acres, impacted over two dozen residences, and TVA estimated the cleanup will cost in the range of one billion dollars.  EPA has worked to determine which surface impoundments pose the greatest threat and published a report in the summer of 2009.

A second issue, albeit one that garnered less press, with CCR disposal has revolved around the potential for ground water contamination.  CCRs can contain several heavy metals such as asenic, selenium, cadmium, lead, and mercury.  While these metals are present in low concentrations, impoundments contain such a large volume of CCR that the mass balance of these metals arguably can be significant.  In addition, most of these impoundments are unlined and, thus, increase the likelihood that these metals will enter the groundwater.  In order to address this issue, EPA’s proposed rule for CCR include liner and monitoring requirements.  That rule will not be finalized until 2013 and most likely wouldn’t be fully implemented for several years after that.

A recent CNN.com article (Read the CNN.com article here) raises the specter that Uranium groundwater contamination may be another risk posed byCCR surface impoundments and is an excellent example of the potential negative press and legal exposure that a utility can receive because of a surface impoundment.  In this case the Georgia Power Plant Schere maintains a 900-acre impoundment and the residences in the area rely upon well water.  According to the article, the residents are experiencing a variety of ailments and cancers.  Testing has indicated that many of their wells contain high levels of uranium.  Furthermore, the article alleges that coal ash has been documented as having significant levels of uranium (a fact which I am attempting to, but as of this moment have not, verified).  A direct cause-and-effect has not been established between the surface impoundment and the residents’ illnesses, and the article notes that EPA believes a naturally occuring source of Uranium may be the source for the wells.  Nevertheless, the mere presence of the surface impoundment has raised the issue.

If you have any questions regarding coal combustion residues, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Cross-State Air Pollution Rule (CSAPR)- Where do we stand?

2 Apr

Air pollution has a nasty habit of not respecting state lines.  Given that winds blow primarily from west to east in the United States, much of the pollution from the MidWest and the Great Plains ends up having an impact upon the East Coast.  The Clean Air Act was drafted with this in mind and contains the “good neighbor” provision in Section 110.  CAA Section 110(a)(2)(D)(i)(I) states that a state implementation plan (SIP) must:

“contain adequate provisions… prohibiting… any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will… contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard”

Needless to say, this creates a hotly contested issue where MidWest and Great Plains states and their respective economies are potentially put at risk for the benefits of people located on the East Coast.  As a result, any effort by US EPA to implement the good neighbor provision by proposing interstate transport regulations elicits significant commentary and inevitably litigation.  Over the course of a single year, August 2010 until August 2011, US EPA proposed and finalized the Cross-State Air Pollution Rule to replace the previous Clean Air Interstate Rule (CAIR) which had been remanded from the D.C. Circuit to EPA for revision.  CSAPR was immediate contested in court for a variety of reasons that will be discussed in this blog later this month.  On December 30, 2011, the D.C. Circuit stayed CSAPS pending judicial review.

The stay was not a judgment on the merits, instead the stay temporarily halted the implementation of CSAPR and reinstated CAIR until the court had the opportunity to review whether the administrative process for noticing CSAPR as well as the actual substance of CSAPR is valid.  On January 18, 2012, the D.C. Circuit issued a briefing schedule for the matter, setting dates for all briefs to be submitted by the parties while stating that oral arguements will be scheduled at a later date.  The final briefs for both parties were due March 16, 2012.

If you have any questions regarding CSAPR, CAIR, or interstate air pollution, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Appealing Clean Air Act Title V permits

26 Mar

It goes without saying that the content of a new Title V permit or a Title V permit renewal can have a dramatic impact on a business.  Thus, the ability to appeal the provisions of a Title V permit is of the utmost importance.  In order to be best  prepared to appeal a Title V permit, a regulated entity needs to have its appeal team assembled and taking action even before the final permit is available.  Why?  The biggest issue is time.  While the federal regulations (4o CFR Part 70) suggest that a state permit program should allow an appeal to be filed within 90 days after issuance, states are allowed to have more strict time deadlines.  Most states require an appeal to be filed within 30 days, although some states only allow 15 days to file an appeal.  In Illinois an appeal must be filed within 35 days pursuant to 415 ILCS 5/40 .

Prior to the final Title V permit being issued by the state, the company should be able to review the proposed permit that was released for public comment and/or the the proposed permit that the state has sent US EPA for the 45 day review.  This affords the appeal team to review the permit to determine which terms may need to be appealed and even to begin preparing an appeal if it appears that important issues will be contested.  That being said, there is no guarantee that the final permit won’t vary from the proposed permit.  The final permit should be reviewed in depth.  The state permitting authority may alter the terms of the permit pursuant to comments from the business or the public (or may fail to address comments that should have been addressed).  Moreover, the permitting agency is not precluded from altering terms of the permit that received no comment.  As a result, all provisions of the permit must be reviewed, regardless of whether they were commented upon.

If you have any questions regarding the Clean Air Act or Title V permits, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Cement Plant Air Pollution Regulations

14 Sep

Last month the EPA issued its final rules regulating emissions from Cement Plants. The main focus of the rules is to limit mercury pollution; Cement Kiln’s being the third largest producer of mercury emissions nationally. In addition, the regulations target smog forming emissions and acid gasses. The new rules will set limits for both new and existing kilns.

When fully implemented, the EPA estimates that these regulations will result in between $6.7 billion and $18 billion. Mercury can damage children’s developing brains and the particle pollution is a major trigger of asthma and other respiratory illnesses. The costs of the regulation are estimated to be less than $1 billion annually. (more…)

What to do when EPA has sent you a violation notice.

31 Aug

During the course of my environmental practice, both at EPA and in private practice, I’ve seen too many regulated companies mishandle a violation notice, notice of violation, or finding of violation (terminology varying by agency and the division of an agency).  Companies have failed to respond, have provided an incomplete response, or have provided inaccurate information.  I have seen all of these permutations lead to administrative penalties (and associated legal and consulting costs) when no penalty was necessary.

Many regulated companies are under the mistaken impression that a violation letter is the end of the enforcement process.  That is incorrect.  In truth, EPA is still in the information gathering stage and has not made a decision whether to pursue an administrative penalty.  In addition, the agency enforcement team has a significant amount of enforcement discretion in determining whether the violations observed during an inspection warrant formal enforcement (i.e., a penalty).  Thus, the response to the violation notice is of crucial importance to the agency’s decision whether to pursue enforcement and should be treated as such.

Due to the significant legal and financial impact stemming from the response to a violation notice, this is the optimal time to engage an environmental attorney.  As an environmental attorney, we are best suited to understand how given facts do or do not constitute violations and can word responses most appropriately.  Furthermore, as a former EPA attorney, I have an excellent sense for how the agency decides to pursue formal enforcement and for which violations the agency decides to pursue a significant penalty.  As a result, I can tailor a response to a violation notice such that it minimizes the risk of formal enforcement.

If you have any questions regarding EPA violation notices, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

 

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