On June 27, 2017, EPA Administrator Scott Pruitt announced that EPA and the Army Corps of Engineers will be publishing a proposed rule (the Recodification Rule) that would rescind the Obama Administration’s definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). EPA states that the Recodification Rule is necessary to “ensure certainty as to the scope of CWA jurisdiction on an interim basis” while EPA and the Army Corps of Engineers conduct “a substantive review of the appropriate scope of ‘waters of the United States’”.
As we previously reported on this blog, the WOTUS Rule (a/k/a the Clean Water Rule) was promulgated by the Obama Administration in 2015, and was the latest attempt to define the jurisdictional limits of the CWA. The CWA limits its jurisdiction to “navigable waters”, which are obliquely defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The precise definition of “waters of the United States” has been a controversial and well-litigated issue for years.
Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
On June 14, 2017, U.S. District Judge James Boasberg, of the U.S. District Court for the District of Columbia, issued an opinion in the case of Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534, finding that the U.S. Army Corps of Engineers (the Corps) did not fully comply with the National Environmental Policy Act (NEPA) when it granted easements to the Dakota Access Pipeline (DAPL) to cross Lake Oahe, a federally regulated water. Plaintiffs in the case, The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, both have Reservations that border Lake Oahe. Indeed, when Lake Oahe was created by the Corps in 1958 via a dam constructed on the Missouri River, the lake covered approximately 56,000 acres of the Standing Rock Reservation and 104,420 acres of the Cheyenne River Tribe’s trust lands.
The proposed DAPL will be nearly 1,200 miles long and will move more than half a million gallons of crude oil from North Dakota to Illinois every day (at a rate of 13,100 to 16,600 gallons per minute). DAPL will cross Lake Oahe 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. Both Tribes use Lake Oahe for drinking water, agriculture and industrial activities, and consider the waters to be “sacred”.
EPA recently extended the effective date of the final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale. EPA has delayed the effective date of the January 12, 2017 final rule from May 12, 2017 to August 14, 2017.
Industry sought to repeal the rule, or at a minimum, obtain an extension of the effective until EPA adopts guidance explaining how to comply with the new two-fold requirements including: 1) companies that make, import or process a distinct or “discrete” form of a nanoscale chemical at some time in the future are to provide information to EPA (135 days before they make, import or process the chemical or within 30 days of deciding to manufacture or process the chemical); and 2) companies must comply with a one-time obligation to report information known or reasonably attainable regarding any nanoscale chemicals made or processed at any time during the past three years. Based upon the information EPA receives, the Agency could decide to require new toxicity, exposure or other data or it could decide to impose restrictions on commercial activity.
Nanomaterials—a diverse category of materials defined mainly by their small size—often exhibit unique properties that can allow for novel applications but also have the potential to negatively impact human health and the environment. Some nanomaterials: more easily penetrate biological barriers than do their bulk counterparts; exhibit toxic effects on the nervous, cardiovascular, pulmonary and reproductive systems; or have antibacterial properties that may negatively impact ecosystems.
Regulation of nanomaterial has created conflict between industry and environmental groups. The Nanomanufacturing Association suggests the rule is a de facto permitting program, while environmental groups believe the rule is long overdue and its impacts are limited by the authorities and procedures already existing under the Toxic Substances and Control Act (TSCA), the federal statute authorizing the new rule. Nanomaterials are used in a variety of commercial and industrial applications including paints, coatings, resins and a host of consumer products ranging from washing machine parts to lithium ion batteries.
A number of scientific organizations have called for the need for the kinds of information on nanomaterials EPA will now be able to collect including the National Academy of Science and the National Nanotechnology Initiative. At this time, it is unclear if the EPA draft guidance will be finalized before the effective date of the new rule.
Exelon and Jenner & Block partnered today with the Alliance for the Great Lakes to cleanup 12th Street Beach, near the Adler Planetarium. Team members worked together to police the beach front picking up and disposing of waste and other discarded materials. The litter was identified, logged, recorded and weighed to aid in understanding the short term and long term impacts we are having on the Great Lakes and the many ecosystems that rely upon them.
The Alliance for the Great Lakes Adopt-a-Beach program promotes working together to protect the Great Lakes through beach cleanups and other community projects. For more than 25 years the Adopt-a-Beach program has worked to keep Great Lakes shorelines healthy, safe, and beautiful. The program is largest of its kind in the region. Adopt-a-Beach touches all five Great Lakes with volunteers from all eight Great Lakes states.
Thanks to our friends at Exelon for including us in this special environmental outreach!
On June 6, 2017, EPA Administrator Scott Pruitt sent a letter to the nation’s governors, informing them that EPA is extending the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standards (“NAAQS”). The Obama Administration promulgated new ozone NAAQS in October 2015, lowering the standards from 75 parts per billion to 70 parts per billion. Under the Clean Air Act, EPA had two years, or until October 1, 2017, to designate areas in the U.S. as being in attainment or nonattainment with the new ozone NAAQS. Administrator Pruitt’s one-year extension pushes the deadline for those designation to October 1, 2018.
On Monday, June 12, 2017, Jenner & Block's Environmental and Workplace Health & Safety Practice Group is hosting a special program targeted at environmental lawyers titled Drilling Down on the Risks: Ethics and Liabilities for Environmental Practitioners. The program will be held from 11:45-1:30 at Jenner & Block’s offices, 353 North Clark Street, in Chicago. You may participate in the program in person or via a webinar.
Three exceptional speakers—Deborah Green Shortridge (ALAS), April Otterberg and Gay Sigel (Jenner & Block)—will discuss a variety of ethical concerns often confronted by environmental lawyers. They will address prior work conflicts, joint representation, common interest agreements, retaining environmental consultants in transactional and litigation matters, positional conflicts, contacting government officials, community outreach, and public statements.
The CLE program will be eligible for 1.5 professional responsibility credits in Illinois.
If you would like to join us for this CLE program, please RSVP here.
Today we celebrate World Environment Day—a global celebration of nature and a day to reconnect with the places that matter most to you. Initiated in 1972, World Environment Day is the United Nations' most important day for promoting worldwide awareness and action for protection of the environment. Since it began in 1974, it has grown to become an international platform for public outreach that is widely celebrated in over 100 countries.
This year's host country is Canada where the official celebrations will take place and the 2017 theme is connecting people to nature encouraging all of us to get outdoors and into nature.
There is greater international awareness and attention focused on the protection and preservation of the environment than ever before. Everyone understands the critical environmental concerns ranging from the politics of the Paris Climate Agreement, the adverse impacts of plastic waste in our oceans, to the international focus on water quality and quantity. World Environment Day is a time to reflect upon and appreciate that the welfare of the planet, including the economic viability of its many nations, depends on the collective efforts we make to protect, preserve and conserve our natural resources and the environment.
Learn more about World Environment Day and efforts around the world to celebrate and improve the environment.
On Thursday, June 1, President Trump announced his intention to withdraw the United States from the landmark Paris Agreement on Climate Change. As we previously reported, the Paris Agreement was adopted on December 12, 2015, at a meeting of the 195 parties to the United Nations Framework Convention on Climate Change (UNFCCC). The historic Paris Agreement is designed to reduce greenhouse gas emissions from both developed and developing nations. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive to limit global temperature rise to 1.5 degrees Celsius. The Paris Agreement also requires developed countries fund investments to assist developing countries meet the Agreement’s goals and adapt to climate change impacts.
The United States and over 150 other countries signed the Paris Agreement at ceremony at United Nations headquarters in New York on Earth Day, April 22, 2016. The Paris Agreement entered into force on November 4, 2016, after being ratified by more than 55 countries, accounting for 55% of global greenhouse gas emissions, per the terms of the Agreement. The Paris Agreement entered into force less than a year after it was adopted, a very quick schedule for a large and complex international treaty. At least one driver in that speed was the desire to have the Paris Agreement in force before the 2016 United States presidential elections, in light of the fact that then-candidate Trump had vowed to pull out of the Paris Agreement if elected.
As of yesterday, May 17th, OSHA updated its website to indicate it will be extending the deadline for employers to submit injury and illness logs electronically on the OSHA website. The requirement to submit injury and illness logs electronically was part of a recent OSHA regulation, issued on May 12, 2016, which also addresses retaliation against employees who report a work-related injury or illness to an employer. 81 Fed. Reg. 29624-94.
Currently, the OSHA recordkeeping website states that:
OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.
OSHA has not published an official notice in the Federal Register or otherwise regarding extending the July 1st deadline. News outlets are reporting that OSHA spokeswoman Mandy Kraft said that the agency delayed the rule to address employers’ “concerns about meeting their reporting obligations” in time.
The language on the OSHA website suggests OSHA will take further action to formalize the extension. It is not clear whether any formal extension of the electronic reporting requirements will have any impact on the anti-retaliation regulations, found in the same rule. The Corporate Environmental Lawyer blog will report on any developments with this OSHA rule.
President Trump announced his intent to nominate former U.S. EPA waste chief Susan Bodine to head up the Office of Enforcement and Compliance Assurance (“OECA”). Since 2015, Bodine has served as chief counsel on the Senate Environment and Public Works Committee and formerly served as the assistant administrator of the Office of Solid Waste and Emergency Management (now known as Office of Land and Emergency Management). This nomination may put to bed rumors that had been swirling that the Administration was looking to eliminate OECA and represents the first nomination by the new Administration for an open U.S. EPA position since the nomination of Scott Pruitt as U.S. EPA Administrator.
Bodine’s prior experience may be useful in helping to advance several of Administrator’s Pruitt’s priorities, including speeding up Superfund cleanups and returning some enforcement roles back to U.S. EPA program offices. The challenge, of course, will be accomplishing these goals in light of the anticipated significant budget cuts within U.S. EPA. Sen. John Barrasso (R-WY), the environmental committee chairman, promised a prompt hearing on Bodine’s nomination.
In a surprising move, on Wednesday May 10th, the U.S. Senate voted 51 to 49 to reject a resolution under the Congressional Review Act (CRA) to repeal a 2016 Bureau of Land Management (BLM) rule aimed at reducing methane releases from oil and gas wells on public land. The rule at issue was published by BLM in the Federal Register on November 18, 2016 (81 FR 83008), and amends 43 CFR Parts 3100, 3160 and 3170 (the Methane Rule).
BLM has stated that the goal of the Methane Rule is to bring the 30-year-old oil and gas production rules in line with technological advances in the industry. The Methane Rule provides numerous rules and restrictions on oil and gas production operations on public and Indian lands, including:
On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.
Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.
The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.
You can RSVP here.
Any questions can be directed to Pravesh Goyal: (312) 923-2643 or email@example.com
As has been the case for the past several years, we are pleased to present a special blog posting commemorating Earth Day. This year, Earth Day is Saturday, April 22, 2017 and the Earth Day campaign is "Environmental and Climate Literacy". This campaign is focused on working to ensure that the general public is educated and literate with respect to environmental issues. For more information regarding this campaign, please click here.
The very first Earth Day, which was held in America in 1970 following a devastating oil spill, is credited as the beginning of the modern environmental movement. Now, more than forty years later, Earth Day is a global event with festivals, rallies and other events will be taking place at various locations throughout the world.
In special commemoration of Earth Day 2017, we have linked to the following two "TED" talks which we hope that you will find interesting. The first "TED" talk (click here) focuses on the Great Lakes, which represent one of the largest collections of fresh water in the world. The second "TED" talk is done by renowned architect Jeanne Gang and focuses on blending nature into architectural projects (click here). Happy Earth Day 2017.
A recent case reminds us that not all communications between lawyers and environmental consultants are privileged despite best efforts to make them so. In Valley Forge Ins. V. Hartford Iron & Metal, Inc., the Northern District of Indiana ruled that the attorney-client privilege doesn’t protect a lawyer’s emails to environmental contractors when the communications concern remediation as opposed to litigation. This case provides a good overview of the protections afforded by the attorney-client privilege and the work-product doctrine in the environmental law context.
At issue are Hartford Iron’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. which were the subject of a motion to compel filed by Valley Forge. Following an in camera review of 185 emails, the court concluded that the evidence reflects that “….Hartford Iron retained Keramida and CH2M as environmental contractors for the primary purpose of providing environmental consulting advice and service to Hartford Iron in designing and constructing a new stormwater management system, not because Hartford Iron’s counsel needed them to “translate” information into a useable form so that counsel could render legal advice.”
The Court did find that certain of the emails were subject to the work-product doctrine as the communications were prepared for the purposes of litigation and that IDEM and EPA already had filed suit against Hartford Iron.
Despite the best efforts of lawyers, not all communications are privileged. The legal privileges are narrowly construed and generally do not protect communications with environmental consultants.
On Tuesday, April 11th, the U.S. Court of Appeals for the D.C. Circuit granted EPA’s motion to continue oral argument and indefinitely delay any decision on challenges to the agency’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. The Clean Air Act requires EPA to issue NAAQS for certain criteria air pollutants, like ozone, and review those NAAQS every five years. The NAAQS establish the permissible levels of air pollutants in the ambient air. If an area has pollution at levels above the NAAQS, it is classified as a nonattainment area. States with nonattainment areas are required to create and implement plans, under EPA’s oversight, to reduce air pollutants to levels below the NAAQS.
Prior to the rule at issue, EPA last revised the ozone NAAQS in 2008, setting the primary and secondary ozone standards at 75 parts per billion (ppb). Shortly after President Obama took office in 2009, EPA began reviewing the NAAQS and conducted extensive scientific, medical, technical and policy research. EPA found that ozone was strongly linked to serious health effects, such as triggering asthma attacks and other respiratory effects. Based on that research, in 2015, EPA issued a revised NAAQS for ozone, lowering the primary and secondary standards to 70 ppb. Numerous parties challenged the 2015 ozone NAAQS in the D.C. Circuit Court – industry challengers claimed the rule was too stringent, while environmental and public health organizations claimed it was not protective enough.
Waters of the United States Case Going Forward in Supreme Court Despite Trump Executive Order To Rescind or Revise the Rule
The controversial Waters of the United States (WOTUS) Rule, promulgated under the Obama Administration, will have its day in the U.S. Supreme Court, despite the Trump Administration’s efforts to stall that litigation while the rule is being revised by the new administration.
As previously discussed in this blog, the WOTUS Rule, also called the Clean Water Rule, was published by U.S. EPA and Army Corps of Engineers on June 29, 2015. The WOTUS Rule defines the scope of waters protected under the Clean Water Act (CWA). The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). U.S. EPA and the Army Corps of Engineers have attempted numerous times to define “waters of the United States”, and thereby define the jurisdictional scope of the CWA. Every such effort has been met with legal court challenges, with the previous definition being struck down by the U.S. Supreme Court in a plurality decision. Rapanos v. United States, 547 U.S. 715 (2006).
By and large, Americans are blessed with clean, safe, plentiful and mostly free drinking water sources. The Flint, Michigan contaminated drinking water scandal was a wakeup call for many that drinking water sources we depend upon may not be as reliable, stable, or even as affordable as we think.
On December 19, 2016, Reuters released a startling report about the quality of America’s drinking water. Reuters' investigation found that at least 3,000 water supplies in the U.S. were contaminated with lead at levels at least double the rates detected in Flint’s drinking water. In addition, 1,100 of these communities had rates of elevated lead in blood tests at least four times higher. Reuters concluded that Flint’s water crisis doesn’t even rank among the most dangerous lead hotspots in the U.S. Like Flint, however, many of the other localities are plagued by legacy lead: crumbling paint, plumbing, or industrial wastes left behind. Unlike Flint, many have received little attention or funding to combat poisoning.
Another critical issue looming on the horizon for many will be the affordability of water. A new Michigan State University (MSU) report recently concluded that a variety of compounding factors in the U.S. could easily push large portions of the population out of the financial range to even afford water in the future. The MSU report concludes:
A variety of pressures ranging from climate change, to sanitation and water quality, to infrastructure upgrades, are placing increasing strain on water prices. Estimates of the costs to replace aging infrastructure in the U.S. alone project over $1 trillion dollars are needed in the next 25 years to replace systems built circa World War II, which could triple the cost of household water bills…. Over the next few decades, water prices are anticipated to increase four times current levels. Prices could go higher if cities look to private providers for water services, who have a tendency to charge higher rates than public providers.
The MSU report concludes that 36% of households will be unable to afford water within five years. The highest risk areas in the U.S. are in the South, with the most at-risk communities in Mississippi. The MSU report noted that Ohio is 9th on the list, followed by Michigan at 12th.
Water risks come in many forms and include not only sufficient quantities and acceptable quality, but also affordability. The latter issue has not been addressed in a meaningful manner in the U.S. and will become a growing concern as water risks of all kinds increase in number and scope.
Today is World Water Day as proclaimed by the United Nations (UN) General Assembly in 1993. World Water Day is about taking action to tackle the global water crisis. Today, 1.8 billion people rely upon a drinking water source that is contaminated putting them at risk for cholera, dysentery, typhoid and polio. The UN Sustainability Development Goals launched in 2015 include a target to ensure everyone has access to safe water by 2030.
The World Economic Forum also has targeted water and water risks as one of the leading global risk factors as recently confirmed in its The Global Risks Report 2017. The Global Risks Report 2017 features perspectives from nearly 750 experts on the perceived impact and likelihood of 30 prevalent global risks as well as 13 underlying trends that could amplify them or alter the interconnections between them over a 10-year timeframe. The report notes that a cluster of environment-related risks—notably extreme weather events and failure of climate change mitigation and adaptation as well as water crisis—has emerged as a consistently central feature of the Global Risks Perception Survey risk landscape.
In 2017, water crises were identified as the third most significant risk based upon potential impacts. In doing so, the experts concluded that there had been “…a significant decline in the available quality and quantity of fresh water, resulting in harmful effects on human health and/or economic activity….”
World Water Day provides a good opportunity to reflect upon how we use water at home and work and in our businesses. It is becoming an increasingly precious natural resource that must be protected and conserved.
Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water
As previously reported here, the Great Lakes and St. Lawrence Cities Initiative (the Cities Initiative) requested a hearing before the Great Lakes-St. Lawrence River Basin Water Resources Council (the Compact Council) regarding the Compact Council’s June 21, 2016 decision to approve the City of Waukesha’s application for a diversion of Great Lakes Basin Water. The Waukesha diversion is the first-ever diversion of Great Lakes water approved under the 2008 Great Lakes-St. Lawrence River Basin Water Resources Compact (the Compact). Under the approved diversion, the City of Waukesha can divert up to 8.2 million gallons per day (annual average demand) from Lake Michigan.
On March 20, 2017, after extensive briefing by the Cities Initiative and the City of Waukesha, the Compact Council held a hearing and allowed oral argument by the parties. The Cities Initiative is a binational coalition of 127 U.S. and Canadian mayors and local officials, representing over 17 million people, working to advance the protection and restoration of the Great Lakes and St. Lawrence River. The Cities Initiative argued that the Compact Council should reconsider its decision to grant the diversion and clarify the standards used to evaluate the Waukesha diversion application as well as the standards it will use to evaluate diversion requests in the future. The City of Waukesha argued that the Compact Council acted reasonably to approve the diversion.
The Compact Council took the matter under advisement at the close of arguments and indicated it likely will issue a written decision in early May.
Jenner & Block is representing the Cities Initiative in this matter, and Jenner Partner Jill Hutchison argued on behalf of the Cities Initiative at the hearing.
The Carbon Disclosure Project’s (CDP’s) Global Water Report 2016 titled Thirsty Business: Why Water is Vital to Climate Action analyzes water disclosures made through the CDP’s 2016 information request. It was aimed at companies facing water risks and opportunities and investors seeking to better understand how water issues might impact portfolios. The report provides insight into the connection between water, energy and private sector efforts to reduce carbon emissions.
Key findings from these corporate water disclosures include:
- Water related risks cost business $14 billion dollars in 2016—a fivefold increase over prior year’s costs (These financial impacts come from drought, flooding, tightening environmental regulation and the cost of cleaning up water pollution and fines)
- 24% of greenhouse gas reductions depend on a stable supply of good quality water
- 53% of companies report better water management in the context of delivering greenhouse gas reductions
The CDP report evaluates corporate performance over five key metrics relating to water management, including tracking water use, reporting and target-setting. In 2016, 61% of companies reported that they track their water use , an increase of 3% over last year.
Ford and Colgate Palmolive are among the best companies in the world when it comes to water management, according to the CDP’s Water A List. The annual index highlights companies implementing best practices in sustainable water management. In 2016, 24 companies made the CDP Water A List, up from eight last year. Ford and Colgate Palmolive are the only two U.S. companies identified on the A List in 2016.
So what can companies do to better manage and reduce their water-related risk? The first step is assessing water use and setting measurable targets. But unlike corporate carbon emissions, there really is no standard methodology that business relies upon to measure and monitor water use. CDP has partnered with the UN CEO Water Mandate, The Nature Conservancy, World Resources Institute and WWF to develop a methodology that will help companies set context-based water targets — essentially a science-based targets approach to water management. In light of company disclosures confirming that 54% of the 4,416 water risks identified will materialize over the next six years, there should be no shortage of corporate interest in test-driving the upcoming water methodology.
On Wednesday, March 22, 2017, from 3-5:30 p.m., Jenner & Block partner Allison A. Torrence will moderate a seminar presented by the Chicago Bar Association (CBA) Environmental Law Committee, addressing the current landscape of local, state and federal environmental law. Ms. Torrence is the current chair of the CBA Environmental Law Committee. Details about the seminar, and a link to register, are below.
Navigating the Current Landscape of Local, State and Federal Environmental Law
Date: March 22, 2017
Time: 3:00-5:30 p.m.
Location: The Chicago Bar Association, 321 S. Plymouth Ct., Chicago, IL
2.5 IL MCLE Credit
Local, state and federal governments all have an important role to play in enacting and enforcing environmental laws. While governments may have differing and changing priorities, environmental regulation and enforcement remain important components of all levels of government. This program will educate participants on some key issues facing business, citizens and communities under local, state and federal environmental law.
Topics and speakers:
HOT TOPICS AND CURRENT ISSUES IN ENVIRONMENTAL LAW FROM THE LOCAL GOVERNMENT PERSPECTIVE
Mort Ames, City of Chicago Department of Law
CURRENT STATE OF ILLINOIS STATE ENVIRONMENTAL LAW
James Morgan, Division of Legal Counsel, Air Enforcement Illinois
EPA THE NUTS AND BOLTS OF U.S. EPA ENFORCEMENT: A VIEW FROM REGION 5
Leverett Nelson, Regional Counsel, U.S. Environmental Protection Agency, Region 5
Allison A. Torrence, Jenner & Block LLP; Chair, CBA Environmental Law Committee
Kristen Laughridge Gale, Nijman Franzetti, LLP; Vice-Chair, CBA Environmental Law Committee
World Water Day, held on March 22 every year, is about taking action to tackle the water crisis. Today, there are over 663 million people living without a safe water supply close to home, spending countless hours queuing or trekking to distant sources, and coping with the health impacts of using contaminated water.
In recognition of World Water Day 2017, the Corporate Environmental Lawyer blog plans to run a weeklong series focused on the critical issues concerning water quality and quantity in the U.S. and globally. This year’s theme for World Water Day is wastewater.
Globally, the vast majority of all the wastewater from our homes, cities, industry and agriculture flows back to nature without being treated or reused—polluting the environment and losing valuable nutrients and other recoverable materials.
Instead of wasting wastewater, we need to reduce and reuse it. In our homes, we can reuse greywater on our gardens and plots. In our cities, we can treat and reuse wastewater for green spaces. In industry and agriculture, we can treat and recycle discharge for things like cooling systems and irrigation.
By exploiting this valuable resource, we will make the water cycle work better for every living thing. And we will help achieve the United Nation's Sustainable Development Goal 6 target to halve the proportion of untreated wastewater and increase water recycling and safe reuse.
Learn more about the importance of how we manage wastewater by viewing this fact sheet.
On March 15, 2017, President Trump released his FY 2018 budget blueprint titled “America First—A Budget Blueprint to Make American Great Again.” In addition to increasing defense spending by $54 billion, the blueprint proposes a $2.7 billion budget reduction for U.S. EPA. Highlights of U.S. EPA's proposed $5.7 billion budget include:
Most state workers’ compensation regulations provide an intentional tort exception for employers' workers’ compensation immunity. A Louisiana district court recently rejected a plaintiffs’ effort to trigger this intentional tort exception to workers’ compensation immunity by citing an OSHA “willful” violation as proof that their employer consciously desired that plaintiffs’ suffer their alleged injuries. In the case at issue, plaintiffs were overcome by fumes when they were ordered to clean a tank rail car that contained hazardous chemicals. Their employer was cited for OSHA violations and several of those violations fell into the “willful” category. The court found that these allegations insufficient to meet Louisiana’s “extremely high” standard necessary to avoid the workers’ compensation bar. Hernandez v. Dedicated TCS, LLC (E.D. La. 3/3/17).
Last year, several courts in Washington and Kentucky had similarly ruled that state workers’ compensation laws provided the exclusive remedy for employees injured in the course of their employment notwithstanding OSHA willful violations. But a U.S. District Court in Idaho recently ruled that employees could pursue tort claims after they were ordered to retrieve radioactive plates without proper protection gear in violation of applicable OSHA regulations.
This week I published an article in the Chicago Daily Law Bulletin, Trump election puts environment into less than green state. In this article, I discuss my thoughts on environmental issues during the transition from the Obama Administration to the Trump Administration. I specifically address: 1) what authority President Trump has to implement environmental changes; 2) what environmental actions have been taken to date; 3) insights into future environmental changes we are likely to see; and 4) reaction from the environmental community.
If you would like to hear more about what’s happening on the environmental front in the Trump administration, please join us next Tuesday, March 7 at Noon for a program titled Environmental, Health & Safety Issues in 2017: What to Expect From the Trump Administration. My partners Gay Sigel, Steve Siros, and Allison Torrence will be providing the latest updates on what we know and what we can anticipate from the Trump administration in connection with environmental, health, and safety considerations.
If you would like to join us for this program or participate via webinar, please RSVP here.