Environmental Litigation and Regulation

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On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610.

Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by indicating that it includes burning for energy recovery. See, 76 Fed. Reg. 15468-69.Continue Reading EPA Clarifies Solid Waste Materials

The Louisiana Department of Environmental Quality (“LDEQ”) announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1).  The exemption, based on an identical exemption promulgated by the EPA under the NPDES program, allowed the use of pesticides in…

On January 26, 2011, the U.S. EPA denied petitioner’s request to reconsider the newly promulgated one-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). See, 76 Fed. Reg. 4780. The EPA determined that the objections raised were not of “central relevance” purportedly because they failed to support an argument that the promulgated standards should be revised. The petitioners objected, in part, to non-binding preamble guidance concerning implementation issues that were separate and independent from revisions of the NAAQS. Since the EPA denied reconsideration, no need existed for a stay.

Petitioner’s primary objection centered on perceived changes in EPA policy through utilization of modeling data to designate areas as non-compliant with the SO2 NAAQS. EPA countered that modeling had long been utilized “to determine whether areas have attained the NAAQS.” Petitioners also expressed concerns that modeling may over-predict violations. In its denial, the EPA countered that “modeling can very accurate identify areas of potential daily, maximum 1-hour concentrations above the NAQQS,” and if over-predictions exist, “interested parties would have a fair opportunity to show that using modeling in that case may not be appropriate.” See, 76 Fed. Reg. at 4782. Under this implementation process, the designation of non-attainment, based on modeling, will be the challengeable final decision.Continue Reading EPA Denies Reconsideration of One-hour Sulfur Dioxide Standard

In a recent decision, the Louisiana Second Circuit Court of Appeals upheld the application of the longstanding subsequent purchaser doctrine to an oilfield legacy case.  The decision Wagoner v. Chevron U.S.A. Inc., et. al., No. 10-45507 (La. 2. Cir. 2010) affirmed the legal principle that the right to recover for property damages is a personal…

New major and modified existing stationary sources require air permits prior to beginning construction. Where increases of criteria pollutants  such as sulfur dioxide, nitrogen dioxide, carbon monoxide, particulate and volatile organic compounds exceed a “significance” threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions units. With agency agreement, the selection of BACT becomes an enforceable part of the permit. 

We now have a new “pollutant,” greenhouse gas (“GHG”) equivalents for the six regulated greenhouse gases (carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, perfluorocabons, and hydrofluorocarbons). GHGs are measured as equivalents to carbon dioxide, the most common GHG (CO2e). Starting January 2, 2011, permits issued for facilities that otherwise trigger PSD (as above) and have a new or increased potential to emit (PTE) of CO2e of 75,000 TPY, must address GHG emissions. Following July 1, 2011, a PSD permit may be required for significant increases in GHGs alone (100,000 tpy for a new source or 75,000 tpy for` a modification), even where there is no significant increase of any other regulated criteria pollutant. 

As with other pollutants, once PSD is triggered for GHGs, the permittee must evaluate and propose that which constitutes BACT to control the CO2e. Although the general scheme for selecting BACT is familiar, a top down ranking of available and technical feasible technologies, the available options are not. There are no conventional CO2e scrubbers or waste heat boilers, or filter traps to capture CO2e.  While some technologies are emerging, the process of determining BACT for CO2 control is a new frontier, and lack of guidance can cause permitting delays. To address some of the uncertainties,  EPA issued guidance on November 10, 2010 concerning permitting GHGs explaining the process for determining the required emission control technology – BACT.


Continue Reading EPA Issues Greenhouse Gas (GHG) Permitting Guidance

Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.

In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.Continue Reading Recent Developments in E-Discovery in Louisiana

During the 2010 Session, the Louisiana Legislature enacted Act 986 to amend La. R.S. 30:2022, the state law concerning the Louisiana Department of Environmental Quality’s (LDEQ) permit process. The legislation began as House Bill 1169 and was authored by Representative Karen St. Germain. Governor Bobby Jindal signed the legislation on July 7, 2010, as Act 986. The Act became effective that same day.

The Act enacted La. R.S. 30:2022(D), which requires greater transparency from LDEQ regarding changes made to permits, renewals, extensions, and modifications. First, Act 986 requires that, if requested by a permit applicant, LDEQ provide the applicant with a written summary of the specific changes to the existing permit whenever LDEQ prepares a draft database permit for the renewal, extension, or substantial permit modification of an existing hazardous waste permit, solid waste permit, Louisiana Pollutant Discharge Elimination System (LPDES) permit, or air quality permit. The database is LDEQ’s Tools for Environmental Management and Protection Organization (TEMPO) database system. Previously, LDEQ was under no obligation to inform a permit applicant of each and every change that had been made in the renewal, extension, or substantial modification of an existing permit.Continue Reading Legislature Changes Permit Process at the Louisiana Department of Environmental Quality

The July 20, 2010 Louisiana Register contained a notice from the Office of Conservation, Louisiana Department of Natural Resources that purported to promulgate rules amending Statewide Order 29-B to add a new Chapter 8 on procedures for evaluation and remediation of groundwater at E&P sites. Conservation’s Web site on July 20, 2010 contained a “final”…

In Hogg v. Chevron U.S.A. Inc., Docket No. 09-CC-2635 (see opinion here), a case handled by Kean Miller attorneys, Leonard L. Kilgore, III and Richard D. McConnell, Jr., the Louisiana Supreme Court reversed the trial court’s denial of a motion for summary judgment based on a prescription (statute of limitations) defense.  In a 5-2 decision, the Louisiana Supreme Court clarified several issues pertinent to prescription in tort cases, in particular to cases involving allegations of environmental contamination of immovable (real) property. The Court addressed the following issues:

1.               What constitutes “actual” and/or “constructive” knowledge of plaintiffs sufficient to commence the running of the applicable prescriptive period for torts under La. Civil Code articles 3492 and 3493;

2.               What constitutes a continuing tort; and

3.               Does the alleged failure to remediate environmental damage constitutes a distinct, continuing tort?

The Court held that letters from the Louisiana Department of Environmental Quality (LDEQ) received by the landowners several years prior to filing suit, advising the landowners of the potential for underground migration of gasoline constituents from a former, leaking underground storage tank (UST) located on nearby property, were sufficient to provide the landowners with knowledge of the potential claim within the meaning of La. Civil Code Article 3493. Article 3493 provides:

“When damage is caused to immoveable property, the one year prescription commences to run from the day the owner of the immoveable acquired, or should have acquired, knowledge of the damages.”

Continue Reading Louisiana Supreme Court Dismisses Environmental Property Damages Case Based on One-Year Prescriptive Period