Energy and Environment Monitor

EPA issued a final rule on October 7, 2008 under the Resource Conservation and Recovery Act to eliminate the regulation of hazardous secondary materials when they are recycled by “legitimate” reclamation.

     The reclamation rule excludes materials from the federal hazardous waste system that are:

• generated and legitimately reclaimed under the control of the generator;
• generated and transferred to another company for legitimate reclamation under specific conditions, provided certain conditions are met; or
• the reclaimed materials are determined by EPA or an authorized state to be non-wastes on a case-by-case basis via a petition process.

     The reclamation must (1) provide a useful contribution to the recycling process; and (2) the recycling must result in a valuable new intermediate or final product. Additionally, the recycled material must be managed as a valuable product; and  the recycled product does not contain toxic constituents at significantly greater levels than a non-recycled product made from virgin materials.

     The information provided to EPA in order to apply for the exclusion includes the name, address and EPA ID number of the facility, name and phone number of a contact person, the NAIS code of the facility ; the exclusion under which the hazardous secondary materials will be managed; whether the reclaimer or intermediate facility has financial assurance; when the facility expects to begin managing the hazardous secondary materials under the exclusion; a list of hazardous secondary materials that will be managed; whether the hazardous secondary material is being managed in a land-based unit; and the quantity of hazardous secondary material that is managed annually.   Notifications are submitted using the RCRA Subtitle C Site Identification Form (EPA Form 8700-12).

     The petition process allows for submission to the authorized state or to EPA, if the state is not authorized for this regulatory provision. The petition must demonstrate that the specific recycling practice is consistent with the regulations. The state or the EPA will evaluate the application and provide public notification. After evaluating any public comments on the application, the state or the Administrator will make a determination regarding the petition. 

     EPA estimates that approximately 1.5 million tons of hazardous secondary materials annually may be removed from regulation as a hazardous waste as a result of this rule. Metals and solvent recycling are the largest industries to be impacted by this regulation.

     The final regulation can be accessed by the following link:  http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm

     This article was authored by Bill Chambers, Acacia Environmental Group LLC. For more information on the author see here.

Proposed Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide Geologic Sequestration Wells; EPA Public Hearing, Denver, Colorado

     On July 25, 2008, the EPA released its proposed requirements for the underground injection of carbon dioxide for geologic sequestration under the Safe Drinking Water Act (SDWA).  The proposed rule applies to wells that will be used to inject carbon dioxide into the subsurface for the purpose of long-term storage.  The regulation is proposed under the authority of the SDWA to ensure protection of underground drinking water sources.  With this regulation, EPA proposes a new class VI well under the Underground Injection Control (UIC) Program as well as addressing the technical criteria for the geologic site characterization, area of review, corrective action, well construction, operation, mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure.  EPA chose the tailored requirement approach to the proposed regulation in which requirements build upon the existing UIC regulatory framework for deep wells.  According to the EPA, the proposed rule incorporates national consistency while providing flexibility or the discretion of the permitting authority when appropriate and limiting unnecessary burden on owners, operators, and permitting authorities.

     The proposed rule includes a request for public comment on or before November 24, 2008.  Public hearings were held on the proposed rule on September 30, 2008 in Chicago, Illinois and on October 2, 2008 in Denver, Colorado.   

     Among those organizations that presented oral comments at the Denver hearing were the Oil and Gas Conservation Division of the Kansas Corporation Commission, the American Petroleum Institute, the North American Carbon Capture & Storage Association, Xcel Energy, the American Water Works Association, the Wyoming Department of Environmental Quality, the Environmental Defense Fund, the Utility Solid Waste Activities Group, Legacy Economy, the Colorado Department of Public Health and Environment, and the National Resources Defense Council.  Concerns expressed at the Denver hearing addressed the following issues:  financial assurances of owner/operators, regulation funding, the requirement of injection below the lowest underground source of drinking water, the requirement of post-injection monitoring and site care of 50 years, primacy, grandfathering, carbon dioxide storage as considered under RCRA and CERCLA, performance based standards, and externalities.

     The proposed rule, supporting information, and information on how to comment on the proposal are available on the EPA’s web site www.epa.gov/safewater/uic/wells_sequestration.html. 

     This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.

Coal Operator Moves to Recuse Judge for Prior Ties to Environmental Group

     In the latest of the series of mountaintop mining cases filed in West Virginia, Fola Coal Company has moved to recuse U.S. District Court Judge Robert C. “Chuck” Chambers based on his prior membership in the West Virginia Highlands Conservancy, a plaintiff in the case.  See OVEC v. Corps of Engineers, No. 3:08-cv-00979, Motion to Disqualify (Oct. 10, 2008).  The case involves a challenge to the “fill” permit issued by the Corps of Engineers to Fola for its surface mining operations in Clay/Nicholas Counties. 

     Earlier in the same week, the West Virginia State Journal reported that Judge Chambers had not only been a member of the Highlands Conservancy, but had also made monetary contributions “as a member of the West Virginia Legislature” in the 1980’s and early 1990’s.  The Journal article reported that Chambers denied having maintained his membership in the Conservancy after becoming a judge.  Judge Chambers is the judge who authored two opinions in a parallel case that rescinded four Corps permits issued to mining entities and declared in-stream sediment pond to be unlawful.  To the best of our knowledge, Judge Chambers had never previously revealed to the parties his prior membership in the West Virginia Highlands Conservancy.

     This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

Former Mining and Industrial Property Sites Prime Candidates for Development of Renewable Energy

     EPA recently announced a program to encourage development of renewable energy on currently and formerly contaminated lands and mining sites. EPA has identified thousands of properties that could potentially host solar, wind or biomass energy production facilities. EPA pinpointed these energy assets using Google Earth and has listed each property’s attributes for energy redevelopment. EPA worked with the Department of Energy’s National Renewable Energy Laboratory to collect information on renewable energy availability across the country, and merged it with EPA’s data from several land cleanup programs. In addition, EPA applied screening criteria including distance from power lines, closeness to roads, and site acreage to identify sites that are good candidates for hosting renewable energy production facilities. EPA used information on properties from several land cleanup programs, including abandoned mine lands and lands under EPA’s Superfund, Brownfields, and Resource Conservation and Recovery Act programs to identify properties with varying levels of historic contamination. Contamination at some of these properties has already been addressed, while the level of contamination at others is still to be fully investigated. It is likely that some of the Brownfields properties have little historic contamination. The appropriate steps to address the contamination at these properties will vary from site to site, depending on the nature of the contamination and intended reuse.

     In regard to mining properties there are several programs:

·          The Mine-Scarred Lands (MSL) Initiative is an effort to improve coordination and collaboration among federal agencies on the cleanup and redevelopment of both hard rock and coal mine-scarred lands.

·          The Good Samaritan Initiative is an EPA-wide initiative to accelerate restoration of watersheds and fisheries threatened by abandoned hard rock mine run-off by encouraging voluntary cleanups by parties that do not own the property and are not responsible for the property's environmental conditions.

·          A Breath of Fresh Air for America's Abandoned Mine Lands: Alternative Energy Provides a Second Wind (PDF)  is a report providing information about the development of wind energy at former mining sites for communities, including local governments, residents, and organizations interested in creating renewable energy resources and new economic opportunities at these sites.

     EPA has identified loan, tax and other resource and incentive programs available for alternative energy development in each State and created maps for six types of energy, as well as non-grid connected wind and photovoltaic solar energy:

·          EPA Tracked Sites with Utility Scale Wind Energy Generation Potential (Wind energy potential with wind power class of 4 or greater.)

·          EPA Tracked Sites with Community Wind Energy Generation Potential (Wind energy potential with wind power class of 3 or greater.)

·          EPA Tracked Sites with Utility Scale Concentrated Solar Power (CSP) Energy Generation Potential (Direct normal resource availability of 6 kWh/m2/day or greater.)

·          EPA Tracked Sites with Utility Scale Photovoltaic (PV) Solar Energy Generation Potential (Direct normal resource availability of 5 kWh/m2/day or greater)

·          EPA Tracked Sites with Biopower Facility Siting Potential (Cumulative biomass resources of 140,000 metric tons/year or greater within 50 miles)

·          EPA Tracked Sites with Biorefinery Facility Siting Potential (Cumulative crop residues of 333,000 metric tons/year or greater within 50 miles).

·          EPA Tracked Sites with Non-Grid Connected Wind Energy Generation Potential

·          EPA Tracked Sites with Non-Grid Connected Photovoltaic (PV) Solar Energy Generation Potential

      EPA identifies loan programs and tax incentives as well as the mapped locations of opportunities for renewable energy generation on contaminated lands and mining sites in all 50 states. For instance in West Virginia, the West Virginia Economic Development Administration (WVEDA) office provides loans from 50,000 to $10 million. Financial assistance is available to participate in the financing of fixed assets for business classifications currently targeted by the WVEDA's job creation criteria. The applicant may be an existing or prospective West Virginia business. Contacts for WVEDA direct loan program: David Warner, dwarner@wveda.org, (304) 558-3650; Joey Browning, jbrowning@wveda.org, (304) 558-3650.)  A West Virginia tax incentive program lowers the property tax on utility-owned wind turbines from 79% to 5% of assessed value. Additionally the West Virginia Business and Operation (B & O) Tax is lowered on utilities using windpower generation. For most types of electricity-generating units, the B&O tax is 40% of the generating capacity; whereas the B&O tax on a wind turbine is 12% of the generating capacity of the turbine.  An additional  tax credit is available for power generation companies that make investment in new, expanded, or revitalized generation facilities (Contact for tax incentive programs is Mark Muchow, mmuchow@tax.state.wv.us, (304) 558-8730.  The West Virginia Renewable Energy Program advances the use of West Virginia’s wind and renewable resources through technical assistance and public-private partnerships. The program can assist developers by providing detailed wind maps, interfacing with West Virginia utilities, and contacting local economic developers. (contact regarding WV renewable Energy Program: Jeff Herholdt, jherholdt@wvdo.org, (304) 558-2234. Net Metering applies to residential and commercial systems up to 25 kW capacity that generate electricity using any renewable resource. (contact Jim Ellars, jellars@psc.state.wv.us, (304) 340-0331)

     The maps for West Virginia identify areas with biopower facility siting potential and biorefinery facility siting potential overlapped with identified RCRA and Superfund sites, but the EPA maps do not yet identify areas for wind energy or solar power potential or abandoned mining lands. Since the maps were only first provided in late September, 2008 it is likely that more areas will be identified with time. For many states the maps did not identify any wind or solar energy areas; whereas some states, such as Texas New Mexico and Wyoming, had full identification of potential wind and solar energy resource sites.  West Virginia certainly has former mining lands with wind energy potential and those will likely be identified on the maps as EPA further develops the program.   

     For more information and access to the maps go to www.epa.gov/renewableenergyland .

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

EPA issues “Million Year Rule” for Yucca Mountain Radiation Standards

The United States Environmental Protection Agency (EPA) released on 9/30/08 its Final Yucca Mountain Radiation Standards.  To say this rule is “far-reaching” is putting it mildly; EPA now has the distinction of promulgating a regulatory limit that reaches 1 million years into the future.  The Yucca Mountain facility is a US Department of Energy (DOE) project.

The DOE has recommended Yucca Mountain as a potential repository for radioactive waste.  If approved, the site would be the nation's first geologic repository for permanent disposal of spent nuclear fuel and high-level radioactive wastes.  Yucca mountain is located in Nye County, Nevada, 100 miles northwest of Las Vegas on federally-owned land on the edge of the Nevada Test Site.  EPA's only role in Yucca Mountain is to establish environmental and public health radiation protection standards for the repository. 

EPA was required to set standards consistent with the findings and recommendations of the National Academy of Sciences (NAS) and satisfy a July 2004 court decision to extend the standards' duration. The Yucca Mountain standards are in line with approaches used in the international radioactive waste management community. The final standards will:

·        Retain the dose limit of 15 millirem per year for the first 10,000 years after disposal;

·      Establish a dose limit of 100 millirem annual exposure per year between 10,000 years and 1 million years;

·      Require the DOE to consider the effects of climate change, earthquakes, volcanoes, and corrosion of the waste packages to safely contain the waste during the 1 million-year period; and

·      Be consistent with the recommendations of the NAS by establishing a radiological protection standard for this facility at the time of peak dose up to 1 million years after disposal.

Human exposure to radiation varies from natural sources, such as radon and ultraviolet radiation from the sun, and other sources, such as medical X-rays. The average annual radiation exposure from both naturally occurring and manmade sources for a person living in the United States has been estimated to be 360 millirem per year.

Role of Other Federal Agencies at Yucca Mountain

The DOE is responsible for the construction, management, and operation of the potential geologic repository at Yucca Mountain. DOE follows Occupational Safety and Health Administration regulations to ensure the safety and health of workers at the site. The Department is also working with the U.S. Geological Survey, part of the Department of the Interior, on site characterization issues and activities.

If the site is licensed and approved to accept radioactive waste, DOE would obtain a license, construct, operate, monitor, and close the repository. Before any waste could be transported to the site, DOE would route the carriers using Department of Transportation and Nuclear Regulatory Commission regulations and guidelines.

NRC is responsible for determining whether DOE will receive the necessary licenses to dispose of spent nuclear fuel and high-level radioactive waste in the potential Yucca Mountain repository.

Now that EPA’s standards are finalized, NRC must revise its regulations to be consistent with our Public Health and Environmental Radiation Protection Standards for Yucca Mountain. 

If waste transportation to Yucca Mountain is authorized, the DOT would be charged with ensuring that waste carriers comply with routing regulations and guidelines. Radioactive waste carrier drivers must be trained and retrained each year to tackle a variety of transport conditions and situations, including rough terrain and severe weather conditions. Drivers must complete a First Responders Course to help them prepare for incident prevention and response. Additional emergency response support would be provided by the Federal Emergency Management Agency.

The Mine Safety and Health Administration of the Department of Labor is responsible for ensuring the health and safety of underground workers at the Yucca Mountain facility. MSHA provides technical assistance and consultation services and conducts on-site safety and health visits at the facility.

To learn more about this EPA action go to: www.epa.gov/radiation/yucca

The DOE comprehensive web site about the planned Yucca Mountain Repository is located at:  http://www.ocrwm.doe.gov/ym_repository/index.shtml

This article was excerpted from EPA and DOE public sources of information, and was authored by Rick Wilson, Acacia Environmental Group LLC. This article was authored by Rick Wilson, Acacia Environmental Group LLC. For more information on the author see here.

States Sue EPA to Invalidate Rule Allowing Water Transfers without NPDES Permits

     Nine states filed a lawsuit Oct. 2, 2008 challenging the EPA's June 9, 2008 rule establishing that Clean Water Act (CWA) NPDES permits are not required for transfers of water from one body of water to another because the transfers do not add pollutants to navigable waters from an outside source.  New York is the lead plaintiff joined by Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington.  (New York v. EPA, S.D.N.Y., No. 1:08-cv-08430, Oct. 9, 2008). Because of some uncertainty under the CWA as to whether the proper forum should be a federal District Court or Circuit Court, suits were filed in both the U.S. District Court for the Southern District of New York and in the U.S. Court of Appeals for the Second Circuit. The lawsuits allege that EPA created a loophole in the CWA by refusing to control the transfer of polluted water from one water body to another, citing federal court decisions which have held that such transfers require regulation under the CWA. The States alleged that the introduction of water from one water body to another water body can cause a host of environmental problems, from harming fishing streams to spreading invasive species in the Great Lakes. Additionally, the rule could allow waters with high sedimentation to be discharged into reservoirs for drinking water.

     EPA's June 9, 2008 rule was its legal interpretation of the CWA concluding that Congress generally did not intend to subject water transfers to regulation under the NPDES permit program. The EPA reasoned that there is no "addition" of a pollutant that would trigger the CWA requirement to obtain an NPDES permit for additions of pollutants to navigable waters since any pollutants are already in the waters being transferred and are not being added from the outside by a point source. The rule, at 40 C.F.R. Part 122, defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. [73 Fed. Reg. 33,697 (6/10/08)).  EPA noted that historically water transfers have occurred routinely for a variety of water resource needs, including routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control, and environmental restoration. 

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

Comments Filed On U.S. EPA’s Responses To State Designations For The 2006 PM2.5 24-Hour NAAQS

More than 180 comments were filed on U.S. EPA’s responses to State and Tribal designations for the 2006 PM_2.5 24-hour NAAQS (73 Fed. Reg. 51,259; September 2, 2008) by the close of the public comment period of October 2, 2008.  The close of the comment period marks the first time that U.S. EPA has sought comments on designations for the PM_2.5 NAAQS.  Comments were filed by states, local governments, industry, and environmental groups.

Comments filed by the American Lung Association, EarthJustice, the Environmental Defense Fund, and the Natural Resources Defense Council generally asserted that U.S. EPA’s proposed designations were not sufficiently inclusive.  These environmental groups contend that EPA must designate all areas currently violating the annual standard as nonattainment because U.S. EPA’s revision of the PM_2.5 NAAQS in 2006 included revisions to the spatial averaging component of the annual standard that EPA promulgated as part of the 1997 PM_2.5 NAAQS.  These environmental groups also contend that U.S. EPA must include all counties contributing to or monitoring violations in the nonattainment areas and oppose nonattainment designations of partial counties.  They disagree with U.S. EPA’s previous designation of Allegheny County, PA into two separate nonattainment areas, namely the Liberty-Clairton and Pittsburgh-Beaver Valley nonattainment areas, and urge U.S. EPA to combine Pittsburgh-New Castle, PA into one nonattainment area.  They also challenge U.S. EPA’s proposed exclusion of the metropolitan Washington, DC area from any area designated nonattainment for the 2006 PM_2.5 standards.  Finally, they attach a list of counties that they contend U.S. EPA must designate as nonattainment.  The West Virginia counties on the list include:  Boone, Clay, Kanawha, Lincoln, and Putnam as part of the Charleston, WV MSA; Berkeley and Morgan as part of the Hagerstown-Martinsburg, MD-WV MSA; Cabell and Wayne as part of the Huntington-Ashland, WV-KY-OH MSA; Pleasants, Wirt, and Wood as part of the Parkersburg-Marietta-Vienna, WV-OH MSA; Brooke and Hancock as part of the Weirton-Steubenville, WV-OH MSA; Jefferson and Hampshire as part of the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV combined SA; and Marshall and Ohio as part of the Wheeling-WV-OH MSA.  In contrast, U.S. EPA intends to designate as nonattainment only the following West Virginia counties:  Cabell, Wayne, part of Mason, Monongalia, Wood, and part of Pleasants. 

West Virginia did not submit comments that were posted as of October 3, 2008.  Connecticut was one of the few States to submit comments.  Connecticut used its comments as an opportunity to point out that the State’s PM_2.5 air quality problems “primarily originate from locations outside of Connecticut.”  Connecticut asked for U.S. EPA’s help to reduce PM_2.5 levels and comply with the 2006 NAAQS “especially in light of the recent vacatur of the CAIR rule,” explaining that the “CAIR vacatur places anticipated upwind reductions in sulfur dioxide and nitrogen oxides in jeopardy.”

Ohio’s congressional delegation submitted comments noting the “region’s current level of economic distress” and data concerning the region’s air quality improvement.  The Ohio congressional delegation urges U.S. EPA to allow Ohio additional time to provide the most recent data possible and delay the decision on redesignations until after that material has been thoroughly reviewed for the counties of Mahoning and Trumbull. 

Comments were also filed on behalf of power plants in Ohio requesting reconsideration of pollution control devices installed on power plants in anticipation of CAIR.  These comments point out that the power plants are in discussion with Ohio EPA regarding these controls and that a consent decree has been filed which, if approved, would be federally enforceable.

Comments filed by the Midwest Ozone Group (MOG) objected to U.S. EPA’s rationale for its PM_2.5 designations.  MOG urged U.S.EPA to defer to state designations and not to violate its own guidance for the 2006 PM_2.5 designations by applying a presumption in fact.  MOG urged U.S. EPA to make PM_2.5 designations based on air quality monitoring data and in the absence of air quality monitoring data to designate an area nonattainment based on contribution to a nearby area only if the contribution is a factor in causing nonattainment.  MOG further urged U.S EPA to abandon its nine-factor test for determining contribution and use modeling instead.  MOG also urged U.S. EPA to consider reasonable alternatives to nonattainment designations, such as consent orders, permit modifications, or special rules as part of state implementation plans.  MOG challenged U.S. EPA’s contributing emission score which is a later version of the weighted emission score that U.S. EPA used of the designations for the 1997 PM_2.5 NAQQS and that is the subject of litigation pending in the D.C. Circuit, Catawba, NC v. EPA, No. 05-1064 (D.C. Cir.).  Finally MOG pointed out U.S. EPA’s inconsistent and arbitrary application of its contributing emission score.  The Illinois Environmental Regulatory Group, an affiliate of the Illinois Chamber of Commerce, was also critical of U.S. EPA’s use of its contributing emission score. 

U.S. EPA will now review and respond to these comments and promulgate final designations for the 2006 24-hour PM_2.5 NAQQS by December 2008 or 2009.  U.S. EPA has said that it anticipates promulgating the final designations by the end of 2008; however, the Clean Air Act allows the U.S. EPA Administrator to extend the deadline for promulgation of designations up to one year in the event of “insufficient information to promulgate the designations”.  Assuming that U.S. EPA promulgates the final designations for the 2006 24-hour PM_2.5 NAQQS by December 2008 and publishes those designations as a final rule in 2009, then the state implementation plans will be due in 2012 and the outermost presumptive attainment date for states with nonattainment areas for the 2006 24-hour PM_2.5 NAAQS will be 2014. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

EPA National Water Program Strategy: Response to Climate Change

     The U.S. Environmental Protection Agency released a draft report on October 2, 2008 that attempts to address pollution, rising sea levels, droughts and other water management issues raised by climate change. EPA's National Water Program outlines 44 action items. The report references increases in water pollution, storm intensity, erosion, water demand and drought as just a few of the risks that climate change poses to water resources. Others include diminishing, less reliable or poorer quality drinking water supplies and warming aquatic ecosystems, which may experience shifts in native species and increases in invasive ones.

     The strategies, developed in 2007 by an internal EPA working group, are intended to guide the agency's water programs, including those created under the Clean Water Act and the Safe Drinking Water Act, to focus on climate repercussions.

     The five categories of climate-related actions in the document are mitigation, adaptation, research, education and water program management. All will be initiated within fiscal year 2008-09, with some to be completed within that time frame and others to be implemented over several years.

      Strategies for assessing water discharge permits will be developed. Another strategy involves re-examining drinking water standards to address the changing nature and extent of contaminants created by increased runoff and erosion.

     The National Water Program document also highlights "the decision to expand water program efforts related to greenhouse gas mitigation rather than only focus on water program adaptation.

     This article was authored by Kathy G. Beckett, Jackson Kelly PLLC. For more information on the author see here.

Highlights of EPA's Just Released 2008 Report on the Environment

     The United States Environmental Protection Agency (EPA) recently released its 2008 Report on the Environment (ROE).  The ROE presents and analyzes key trends and indicators of our nation’s environmental quality over time. The 2008 ROE analyzes available environmental data through calendar year 2006.  Overall, most environmental indicator trends are positive and reflect continued national environmental progress.

     The ROE is composed of two reports – the "EPA’s 2008 Report on the Environment," a technical document intended for environmental professionals, and the "EPA’s 2008 Report on the Environment: Highlights of National Trends," (sometimes referred to as the ROE Highlights Document) which summarizes the key findings of the technical document without all of the technical detail.

     The ROE is also available for viewing via on-line electronic presentation (referred to as eROE).  The eROE provides access to all the environmental trend data contained in the ROE in a searchable format.   

     The ROE presents 78 environmental indicators at the national scale.  In response to recommendations made to EPA, 32 of these indicators also present information at regional scales, most of them by EPA Region.  There are also seven special pilot indicators developed by EPA Regional Offices that cover only one EPA Region or parts of one or two EPA Regions.  The EPA Region 3 ROE supplement is entitled "EPA’s 2008 Report on the Environment: Indicators Presenting Data for EPA Region 3."

     According to EPA, the 2008 ROE is written with the intent to:

“…present the best available, scientifically sound information on national environmental and human health trends critical to EPA's mission and of interest to the public.

…provide the American people with an important resource from which they can better understand trends in the condition of the air, water, land, and human health of the United States.

…use scientifically sound measures, called indicators, to address fundamental questions relevant to the EPA’s mission to protect the environment and human health. 

… help EPA to prioritize its work and to focus on human health and ecological activities that can lead to improvements in the conditions of the Nation’s environment.”

     The ROE is too massive in its scope and level of detail to allow a comprehensive summary of all 2008 ROE findings within this blog article.  However, the following represents a sampling of the key findings of the 2008 ROE:

• Nationwide, emissions of criteria pollutants (or the pollutants that form them) due to human activities have decreased, in some cases substantially, while population and economic activity have increased markedly.
• Outdoor air concentrations of carbon monoxide, lead, nitrogen dioxide, ozone, and particulate matter have decreased over the decades during which the current nationwide monitoring network has operated.
• Acid rain, as measured by wet deposition of sulfates and nitrates, decreased across most of the country from 1989 to 2006.
• The overall extent of wetlands in the lower 48 states declined over the past 50 years.  The rate of loss has slowed over time, however, and the most recent data (1998-2004) show a net gain in wetlands acreage nationwide.
• In 2007, 92 percent of community water system customers (262 million people) were served by facilities for which states reported no violations of EPA’s health-based drinking water standards.
• The total acreage of forest land nationwide declined between the 1930s and the 1970s, but increased over the last three decades.
• Since 1990, the per capita municipal solid waste generation rate has remained stable at four and one-half pounds per person per day.  Hazardous waste generation has declined.
• Over the past 45 years, the use of fertilizers, including nitrogen, phosphate, and potash, has increased nearly three-fold.

     For general information concerning USEPA’s Report on the Environment 2008, or to view the ROE Dynamic Web electronic presentation, see the web site http://www.epa.gov/roe/.  This Web site also provides access to the methodology, references, and sources of additional information behind the indicators that form the foundation of the reports.

     To download the complete 2008 Report on the Environment (warning – it’s a large 33MB pdf file for the entire 366 pp report), or individual chapters, EPA Regional sub-reports, or the 2008 Report on the Environment: Highlights of National Trends summary report (3MB pdf file, 40 pp report),  go to the following web site and look for the various download options near the bottom of the web page: 

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=190806 

     This article was authored by Rick Wilson, Acacia Environmental Group LLC. For more information on the author see here.

7th Circuit Court of Appeals Rules that State Property Law Must be Used to Determine Whether a Tax Sale Purchaser is an “Owner” Under CERCLA

     In United States v. Capital Tax Corporation, the United States Court of Appeals for the Seventh Circuit reversed a district court decision which held a tax sale property purchaser responsible as an “owner” of a Superfund clean-up site (No. 07-3744, Sept. 19, 2008).  The district court had ruled that the tax sale purchaser was liable because it had accepted a tax deed to the property.  The Circuit Court ruled that the issue was more complicated and remanded the issue to the district court for evaluation using State property law. 

     The tax sale purchaser claimed that its normal and customary practice was to take a deed to a delinquent property only after it had arranged to sell the property to a buyer.  It claimed in this case that it had taken the deed only as part of an agreement to sell the property to a third party, although the agreement had not been reduced to a written contract.  As a result, the tax sale purchaser claimed that it held indicia title solely to secure payment from the third party purchaser, and thereby qualified for the secured creditor exemption from the definition of “ownership” in CERCLA.  That provision provides that “owners” liable under CERCLA do not include people who hold indicia of ownership primarily to protect a security interest in a facility.  The district court ruled that the tax sale purchaser was not a secured lender because it had not made a formal loan.

     The Circuit Court reversed, finding that the defense rested on the concept of “equitable conversion.”  Under that doctrine, in the vast majority of jurisdictions, upon entering into a contract for the sale of land, the seller merely holds legal title as security for payment of the purchase price.  In this case, that would make the tax sale purchaser merely a secured party in its attempt to sell the property to a third party.  The Circuit ruled that the district court needed to re-examine whether the tax sale purchaser was an “owner” under CERCLA, after applying principles of Illinois state law, rather than attempting to create federal common law.

     This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.