Elliott & Elliott Launches New PennEast Pipeline Documents Public Archive

Elliott & Elliott announces the launch of a new publicly-available Dropbox archive of documents relating to the proposed PennEast natural gas pipeline.  The archive, which will be continuously updated, includes documents from the Federal Energy Regulatory Commission (FERC) docket for the PennEast pipeline project (PF15-1), the Delaware River Basin Commission (DRBC), and other agencies and organizations.  The archive also includes guides to accessing electronic information at FERC Online, including instructions on subscribing to a docket, and the FERC "citizen guide", An Interstate Natural Gas Facility on My Land:  What Do I Need to Know?  The Dropbox archive is available at: https://www.dropbox.com/sh/fwhs6dcjtmrptq9/AABmUxo8I0N4z_n_l4J-WJ8Ea?dl=0

(Please be patient for large files to load.)

We welcome additional submissions of documents and other information on the #PennEast pipeline for the archive.  Submissions can be sent to: pipeline@elliott-lawyers.com

Speaking of Lead Poisoning, EPA Finalizes New Rules on Air Pollution from Secondary Lead Smelters; Will Affect Exide Laureldale, PA Facility

Today's Federal Register contains the Environmental Protection Agency's new Clean Air Act rules on air pollution from secondary lead smelters.   The new rule, amending the 1997 National Emissions Standard for Hazardous Air Pollutants for secondary lead smelters, imposes more stringent emission limits for lead compounds, adds work practice standards for mercury emissions, and imposes new requirements for testing, monitoring and record keeping.   In promulgating the new rule, EPA "determined that the risks associated with emissions from this source category are unacceptable primarily due to fugitive emissions of lead." The timing of the issuance of this final rule is ironic, as the lead emission standards are ultimately based on the outdated and lax "level of concern" for lead poisoning that the CDC's Advisory Committee on Childhood Lead Poisoning voted yesterday to cut in half.  See our post of January 4, 2011.

Moreover, although the rule is generally effective immediately, the compliance date for the revised stack and fugitive lead emission standards at existing sources -- such as existing sources at the Exide facility in Laureldale, PA - won't be effective for another two years: January 6, 2014.

The Exide facility was recently featured in an investigative report by the Center for Public Integrity as one of America's "poisoned places."

Note: In 2000, our firm and our co-counsel at Williams, Cuker and Berezofsky (now, Williams Cedar) successfully concluded federal litigation on behalf of victims of environmental pollution from the Exide/General Battery Facility with a court decree which provided for the remediation of our clients' contaminated properties and future environmental compliance. We brought successful federal claims under the Clean Water Act, Clean Air Act and Resource Conservation and Recovery Act ("RCRA").  A copy of the court opinion on summary judgment cross-motions (LEAD Group, et al. v. Exide,  United States District Court, E.D. Pa., 1999) is here.  A copy of the consent decree is available upon request.

EPA Orders Coal-Fired Portland Generating Station to Reduce Sulfur Dioxide Interstate Air Pollution

Portland Generating Station

The U.S. Environmental Protection Agency has ordered the coal-fired Portland Generating Station in Northampton County, PA to put an end to its interstate air pollution. In a 95-page decision issued on October 31, 2011, EPA ordered the plant, operated by GenOn REMA LLC (GenOn Energy), to reduce its sulfur dioxide emissions by 81 percent within three years.  The decision also establishes interim emission rate limits which the plant must meet within one year. The decision constitutes final rulemaking, and adds a new rule at 40 C.F.R. Section 52.2039. It has been reported that this is the first EPA rulemaking directed at a single pollution source. 

The EPA found that emissions of sulfur dioxide (SO2) from the Portland plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The decision provides a detailed analysis of EPA's authority under Section 126 of the Clean Air Act to provide a remedy to downwind states subjected to pollution from out-of-state sources.  It also reviews the emissions data, air pollution dispersion modeling, available control technologies, and other technical issues supporting its decision.

UPDATE: The EPA decison was published in the November 7, 2011 Federal Register (76 Fed. Reg. 69052, et seq.) and is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-07/pdf/2011-28816.pdf.

EcoWatch: New National Environmental News Service

EcoWatch has launched its new national news service in partnership with Waterkeeper Alliance, the first media source to focus exclusively on news from more than 700 environmental organizations across the country. EcoWatch offers original content in its Insights column from national leaders in the environmental movement. It will provide nationwide and state-by-state environmental news, and content in five major areas: water, air, food, energy and biodiversity.

“The current assault on America’s environmental laws, like the Clean Water Act, creates a pressing need to educate and engage people to protect our infrastructure, the air we breathe, the water we drink, to provide our children with the same opportunities for dignity and enrichment as our parents gave us,” said Robert F. Kennedy, Jr. founder and president of Waterkeeper Alliance. “This website encourages people to be part of the solution and engage in democracy.”

The site is well-designed and content-rich, offering objective information and deep insight from voices we need to hear.

Chrin Landfill Agrees to Pay $114,00 DEP Fine for Odor & Air Violations

Chrin Brothers Sanitary Landfill has agreed to pay a $114,000 fine to the Pa. Department of Environmental Protection for odor, air pollution and waste management violations, according to an article in the Express-Times (Easton, PA).  It also agreed to withdraw an appeal of the fine which had been pending before the state Environmental Hearing Board. (We reported that appeal in our post of January 31.) In addition to paying the fine, Chrin also agreed to improve its waste and odor management practices. According to the article by reporter Colin McEvoy, "Chrin said the landfill will adopt new off-site odor-minimization procedures and implement twice-daily patrols to monitor the landfill perimeter for potential odors. The company will also instruct its haulers on proper management of particularly odorous loads to avoid problems during disposal, he said, and will deploy a rapid-response team to inspect those loads whenever they are accepted."  Chrin also agreed to give up any further appeal rights.

National Research Council Issues New Report: "America's Climate Choices"

The National Research Council released today a new report, "America's Climate Choices", the final volume of the "America's Climate Choices" suite of activities. The report examines the nation’s options for responding to the risks posed by climate change. The report concludes that it is imprudent to further delay actions to substantially reduce greenhouse emissions, and offers a series of recommendations for national policy.  The primary recommendation is for the nation to substantially reduce greenhouse gas emissions, with the "most effective strategy" to "begin ramping down emissions as soon as possible". The NAS recommendations also include mobilization for adaptation to climate change, including adaptation planning and implementation "at all levels of society".  

A PDF of the entire report can be downloaded for personal use.  It will make sobering reading.

EPA Proposes Finding Northampton County PA Coal Power Plant Causes SO2 Air Pollution Violations in NJ

Portland Coal Power Plant

UPDATE

: On October 31, 2011 the EPA Issued its final response to the New Jersey Petition, finding that the coal-fired Portland Generating Station in Upper Mount Bethel Township, PA is emitting air pollutants in violation of the interstate transport provisions of the Clean Air Act. EPA found that the plant's SO2 emissions significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The EPA is establishing emission limitations and compliance schedules to ensure that the plant will eliminate its significant contribution to SO2 pollution in New Jersey. See

our post of November 4, 2011

.

The U.S. EPA is proposing to formally find that the coal-fired Portland Generating Station in Upper Mount Bethel Township, Northampton County, Pennsylvania, is causing interstate air pollution in violation of the federal Clean Air Act.  It also proposes to impose emission limitations to force substantial reductions of sulfur dioxide emissions from the plant.

In its "Response to Petition from New Jersey Regarding SO2 Emissions from the Portland Generating Station", EPA proposes to issue a finding that emissions of sulfur dioxide (SO2) from the Portland Plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. This finding is proposed in response to a petition submitted by the State of New Jersey Department of Environmental Protection (NJDEP) on September 17, 2010. EPA is also proposing emission limitations and compliance schedules to significantly reduce SO2 emissions from the plant.

According to the NJDEP petition and the proposed EPA finding,emissions from the Portland plant are causing SO2 concentrations far in excess of the NAAQS of 196 micrograms/m3.  EPA states that these violations require an

81 percent reduction

in emissions from the Portland plant to reduce SO2 concentrations below the NAAQS.

EPA will receive comments on this proposed finding, which must be received on or before May 27, 2011. Submit comments, identified by Docket ID No. EPA-HQ-OAR-2011-0081, online at 

http://www.regulations.gov

, by email to: a-and-r-docket@epa.gov. Attention Docket ID No. EPA-HQ-OAR-2011-0081, or mail to: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2011-0081, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC  20460.

A public hearing will be held on April 27, 2011, in the Pequest Trout Hatchery and Natural Resources Education Center located in Oxford, Warren County, New Jersey 07863.

EPA Issues Final Rule "Tailoring" Permit Requirements for Greenhouse Gas Emissions

On May 13, 2010 EPA took one more regulatory action to address climate change and greenhouse gas (GHG) emissions, by issuing its final rule setting thresholds for GHG emissions that define when permits are required under the major EPA programs for stationary sources. These include the New Source Review Prevention of Significant Deterioration (PSD) and title V Operating Permit programs.

First Step (January 2, 2011–June 30, 2011). In the first step of this three-step rule, for the first 18 months, only sources currently subject to the PSD permitting program (i.e., those that are newly-constructed or modified in a way that significantly increases emissions of a pollutant other than GHGs) would be subject to permitting requirements for their GHG emissions under PSD. Projects with GHG increases of 75,000 tpy or more of total GHG, on a CO2e basis, would need to determine the Best Available Control Technology (BACT) for their GHG emissions. Similarly for the operating permit program, only sources currently subject to the program (i.e., newly constructed or existing major sources for a pollutant other than GHGs) would be subject to title V requirements for GHG.

Second Step (July 1, 2011 to June 30, 2013). Next, PSD permit requirements will cover for the first time new construction projects that emit GHG emissions of at least 100,000 tpy even if they do not exceed the permitting thresholds for any other pollutant. Modifications at existing facilities that increase GHG emissions by at least 75,000 tpy will be subject to permitting requirements, even if they do not significantly increase emissions of any other pollutant.  Similarly, operating permit requirements will apply to sources based on their GHG emissions even if they would not apply based on emissions of any other pollutant. Facilities that emit at least 100,000 tpy CO2e will be subject to title V permit requirements.  First-time Title V permittees are likely to be solid waste landfills and industrial manufacturers.

Third Step.  EPA commits to another rulemaking, to begin in 2011 and conclude no later than July 1, 2012. That action will take comment on an additional step for phasing in GHG permitting, and may discuss whether certain smaller sources can be permanently excluded from permitting. EPA also plans to explore a range of opportunities to reduce permit burdens and to streamline permitting actions.

A copy of the EPA fact sheet is available at: http://www.epa.gov/nsr/documents/20100413fs.pdf

A copy of the final rule (515 pp.) is available at: http://www.epa.gov/nsr/documents/20100413final.pdf

U.S. Chamber of Commerce, Coal & Gas Industries Attack EPA's Greenhouse Gas Endangerment Finding

In a predictable legal free-for-all, industry groups joined the state of Texas and the U.S. Chamber of Commerce late last week in filing challenges to EPA's "endangerment" finding for greenhouse gas emissions under the Clean AIr Act, while sixteen states and several environmental groups joined the fray by seeking to intervene in the industry challenges. The U.S. Court of Appeals for the District of Columbia Circuit will hear the cases.  All of the various petitions for review will almost certainly be consolidated. Background:  On December 7, 2009, the EPA Administrator signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:

• Endangerment Finding: The Administrator found that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
• Cause or Contribute Finding: The Administrator found that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

These findings do not themselves impose any requirements on industry or other entities  See EPA's background materials supporting its greenhouse gas endangerment findings under section 202 of the Clean Air Act.

The industry challengers include Ohio Coal Association, the Utility Air Regulatory Group, the Portland Cement Association, and the Competitive Enterprise Institute, along with a coalition that includes the National Association of Manufacturers (NAM), the American Petroleum Institute, the Corn Refiners Association, the National Association of Home Builders, the National Petrochemical and Refiners Association, and the Western States Petroleum Association. Ten other petitions were filed by the American Iron and Steel Institute, the American Farm Bureau Federation, the National Mining Association, Peabody Energy, the Southeastern Legal Foundation on behalf of 13 House Republicans and business associations, and the so-called "Coalition for Responsible Regulation".

The state and environmental groups seeking to intervene to support EPA's endangerment finding include a coalition of 16 states and New York City, and groups including the Natural Resources Defense Council, Environmental Defense Fund, Sierra Club and the National Wildlife Federation.

In a statement reported by the New York Times, Environmental Defense Fund Texas regional director Jim Marston said: "The lawsuit filed by Governor Perry is asking the Environmental Protection Agency to ignore the Supreme Court's decision in U.S. vs. Massachusetts. Their action invokes memories of a sad time in Texas history from the '50s, when Texas politicians sought to nullify decisions of the U.S. Supreme Court. Not only is it legally unsound, it puts Texas on the side of the 1950s economy, against the clean energy economy of the future."

PADEP Proposes More Stringent Air Pollution Standards/NSR Rules for Fine Particulates

On February 6, 2010 The Pennsylvania Environmental Quality Board (EQB) published a formal notice of proposed rulemaking to amend Pennsylvania's New Source Review (NSR) rules to incorporate current federal requirements for fine particulate matter, so-called "PM 2.5".  Recent federal revisions to the National Ambient Air Quality Standard (NAAQS) for PM2.5 have made the standard much more stringent, reducing the primary and secondary 24-hour NAAQS for PM2.5 from 65 micrograms/cubic meter to 35 micrograms per cubic meter. As a result of this change, Bucks County, Lehigh County and Northampton County (among others) have been designated as non-attainment for the 24-hour NAAQS for PM2.5.These changes will affect new major stationary sources and major modifications to such sources which emit fine particulate matter.

The proposed rulemaking was published for public comment in the Pennsylvania Bulletin of February 6, 2010. Comments on this proposal may be submitted to the Environmental Quality Board at any one of the following addresses: U.S. Mail: EQB, P.O. Box 8477, Harrisburg, PA 17105-8477; Electronically: RegComments@state.pa.us; Street Address: 16th Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301.  Comments must be received by the Environmental Quality Board by April 12, 2010.

Chrin Brothers Landfill Appeals PADEP Fine for Air and Waste Violations

UPDATE:  Chrin Brothers has agreed to withdraw its appeal and to pay a fine of $114,000 and undertake new measures to minimize odors and air pollution problems. See our September 20, 2011 post.

Chrin Brothers, Inc. has appealed the December 28, 2009 fine of $187,500 imposed by the Pennsylvania Department of Environmental Protection (PADEP) for air pollution and waste management violations at its landfill. See our post of December 28, 2009 for more details on the landfill facility and the PADEP fine. As we noted in our post, appeals of PADEP civil penalty assessments are filed with the Environmental Hearing Board ("EHB"). 

Detailed information about the Chrin Landfill appeal can be followed at the EHB website case information page and the docket sheet for the appeal. Standard scheduling orders have been issued in the case.

EPA Announces New Proposed NAAQS (Air Quality) Standards for Ozone

The United States Environmental Protection Agency today announced a set of new proposed National Ambient Air Quality Standards (NAAQS) for ground-level ozone, also known as "smog". Ground-level ozone is linked to various serious health problems, ranging from aggravation of asthma to increased risk of premature death in people with heart or lung disease. EPA is proposing to replace the standards set in 2008 by the Bush administration. Those standards were roundly criticized as inadequate to protect human health as required by the Clean Air Act. EPA's press statement states: "EPA is stepping up to protect Americans from one of the most persistent and widespread pollutants we face. Smog in the air we breathe poses a very serious health threat, especially to children and individuals suffering from asthma and lung disease. It dirties our air, clouds our cities, and drives up health care costs across the country." The new primary standard, developed to protect public health, is proposed to be a level between 0.060 and 0.070 parts per million (ppm) measured over eight hours. The current eight-hour primary standard is 0.075 parts per million (ppm). EPA is also proposing to set a separate “secondary” standard to protect the environment, especially plants and trees. This seasonal standard is designed to protect plants and trees from damage due to ozone exposure,

EPA will receive public comments on the proposed rule for a period of sixty days from the date the proposed rule is published in the Federal Register.  We'll update this post with a link to the Federal Register notice when it is published.

FIRST UPDATE:  EPA has announced public hearings on this ozone NAAQS rulemaking. See the public notice for details of the EPA hearings scheduled for Arlington, Virginia and Houston,Texas on February 2, 2010 and in Sacramento, California on Feburary 4, 2010.

SECOND UPDATE: January 19, 2009: EPA today published the Federal Register notice on the proposed rule to revise the NAAQS for ozone. A copy of the proposed rulemaking is available online at http://edocket.access.gpo.gov/2010/2010-340.htm. Written comments to EPA are due by March 22, 2010. Comments may be submitted electronically to http://www.regulations.gov (follow the on-line instructions) and via e-mail to: a-and-r-Docket@epa.gov

EPA Releases 2009 Environmental Compliance Enforcement Action Record

EPA has released its 2009 Compliance Enforcement Actionsrecord. EPA's site also includes an interactive mapping tool which allows the public to search and identify federal environmental enforcement actions in any geographic area.  The site allows searches by environmental media (air, water, land and cross-media) and by location. Significant enforcement actions taken by EPA in 2009 in the Lehigh Valley included a multi-facility enforcement action against several Lehigh County municipal sewage facilities for sewer overflow violations. Also noteworthy was the criminal prosecution of Atlantic States Cast Iron Pipe Co., Phillipsburg, NJ in the longest federal trial in environmental crimes history. The corporation and four managers were convicted of engaging in an eight-year conspiracy to pollute the air and Delaware River in violation of the federal Clean Air and Clean Water Acts, expose its employees to dangerous conditions, and impede and obstruct federal regulatory and criminal investigations.In 2009 (FY), EPA concluded civil and criminal enforcement actions requiring polluters to invest an estimated $5.4 billion to reduce pollution, clean up contaminated land and water, achieve compliance and fund environmentally beneficial projects. Civil and criminal defendants committed to reduce pollution by approximately 570 million pounds annually once all required controls are fully implemented.

EPA's top Clean Air Act enforcement actions during FY 2009 reduced approximately 230 million pounds of sulfur oxides (SOx), nitrogen oxides (NOx) and particulate matter (PM) per year when all the required pollution controls are in place, resulting in estimated health benefits of between $4 billion to $9.8 billion. See more on civil enforcement.

In FY 2009, EPA opened 387 new environmental crime cases, the largest number of criminal case initiations in five years. EPA also launched the Fugitive Web Sitein fiscal year 2009, which assisted in the capture or surrender of five fugitives. See more on criminal enforcement.

EPA obtained $371 million from settlements with responsible parties to reimburse EPA for its past expenditures for cleaning up Superfund sites. This is the highest cost recovered ever for the Superfund program. See more on the Superfund program.

In FY 2009, EPA concluded 51 enforcement actions against federal agencies and federal facility contractors for alleged violations of environmental laws. These actions will prevent more than 13 million pounds of pollutants from being released into the environment. See more on federal facilities.

In addition, this year EPA began major initiatives to remediate pollution of the Chesapeake Bayand provide information about enforcement of the Clean Water Act, the Clean Air Actand the Resource Conservation and Recovery Act (RCRA).

Pa. Supreme Court Gives Victory to Mercury-Emitting Coal Power Plants; Invalidates State DEP Mercury Emission Limits

The Pennsylvania Supreme Court handed a victory this week to coal-fired electric generating facilities when it invalidated Pennsylvania's regulations limiting their emission of mercury.  In its December 23, 2009 decision, the Court found that the Pa. regulations could not stand after the legal basis for the rule - a federal EPA decision which provided for state regulation of mercury emissions from oil and coal-fired electric generating units - was invalidated by the U.S. Court of Appeals for the D.C. Circuit.Background. In 2005, the U.S. Environmental Protection Agency (“EPA”) issued a final "Delisting Rule" which removed oil- and coal-fired electric generating units (EGUs) from the list of mercury pollution sources regulated under the hazardous air pollutants provisions of section 112 of the Clean Air Act. (70 Fed. Reg. 15994-01 (03/29/2005)). However, the EPA did not abolish regulation of mercury emissions from oil- and coal-fired EGUs. Rather, it shifted the responsibility for the mechanics of the regulation to the states. To accomplish this shifting to the states, the EPA promulgated the Clean Air Mercury Rule (“CAMR”). 70 Fed. Reg. 28606 (5/18/2005). CAMR was predicated on the Delisting Rule and it established a mercury emission budget for each state and required each state to develop a program to regulate the mercury emissions from oil- and coal-fired EGUs.  Pennsylvania opted to develop a mercury regulation program that would keep emissions within the mercury budget set by the EPA and developed the PA Mercury Rule as the Pa. state response to CAMR. The PA Mercury Rule required, among other things, coal fired power plants to reduce their mercury emissions by 80% by January 2010.

EPA's decision to delist coal-fired electric generating stations from section 112's list of mercury sources was challenged in federal court. The D.C. Circuit Court of Appeals ultimately invalidated that delisting decision because EPA failed to follow the required delisting procedures. New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). The effect of that D.C. Circuit Court of Appeals decision was that EGUs remained listed as mercury sources under federal law, Section 112. The court also found that once the Delisting Rule was declared invalid, CAMR no longer had a legal basis and it vacated CAMR as well.

Because under the Pa. Air Pollution Control Act, DEP generally cannot regulate hazardous air pollutants which are federally regulated under Section 112 of the Clean Air Act, and the very basis for the Pa. Mercury Rule was EPA's delisting decision, the Pa. Supreme Court held that once the EPA delisting decision was invalidated by the D.C. Circuit Court of Appeals, the Pennsylvania state rule could not stand. 

Case: PPL Generation, LLC, et al., v. Commonwealth of Pennsylvania, No, 7 MAP 2009 (Pa. Supreme Court, December 23, 2009