The Keystone Cop-Out

You may recall the old black and white movies of the hapless Keystone Cops, who run about frantically in aimless fashion and never seem be able to achieve anything. Whenever I read anything about the Keystone XL Pipeline, I cannot help but think of those grainy images as interested parties, such as environmentalists, unions, Congress, and the Obama Administration, scurry about in every direction and jockey for position and political cover during this election cycle.

The Keystone XL Pipeline Project is a $13 billion investment by TransCanada. The pipeline is designed to transport about 830,000 barrels of oil per day from Alberta, Canada to US refining markets. The proposed pipeline will originate in Hardisty, Alberta and extend southeast through Saskatchewan, Montana, and South Dakota to Steele City, Nebraska, where it would tie into an existing pipeline (Keystone Phase II) running to Cushing, Oklahoma. From Cushing, the proposed pipeline will continue to the Port Arthur/Houston area. The project is stated to create about 20,000 ‘shovel-ready’ construction jobs and an additional 118,000 jobs through increased business for local goods and services. Industry support is near universal and even labor and construction unions have expressed support for the project. Continue reading “The Keystone Cop-Out” →

Recent EPA Decisions Impacting Business Opportunities

The National Ambient Air Quality Standards (NAAQS) are air quality standards that are set for pollutants, such as ozone and sulfur dioxide (SO2), at levels necessary to protect the public from adverse effects from that pollutant. If an area exceeds the level, controls and restrictions are placed on emission sources within the area until the standard is achieved.

However, while these controls and restrictions may serve to reduce the level of pollutants over time, they also serve to make growth and expansion more expensive and difficult. A company seeking to construct or expand a facility in a non-attainment area generally must spend additional money to install the mandated air pollution control equipment. These added costs, along with additional permitting costs, may make the project too expensive. In turn, suppliers, contractors, and others who might be involved in the project do not realize that opportunity. Anyone doing business in the Houston or Baton Rouge areas know the limitations imposed by a failure to attain the NAAQS for ozone. Continue reading “Recent EPA Decisions Impacting Business Opportunities” →

Environmental Issues Facing Auto Dealers

Automotive dealerships face numerous challenges in the current economic climate.An ongoing challenge, in good times and bad, is ensuring that environmental liability and the associated costs are minimized as much as possible so that capital is are not needlessly expended.The risk of liability may be minimized by taking several pro-active steps.

Limiting Liability for Past Contamination

It should not come as a surprise that the owner of an automotive dealership will be held liable for spills and releases of spent solvents, used oil, gasoline, or other pollutants or contaminants into soil, surface water, or groundwater that occur when the owner is in control of the property.Compliance with the regulations and good housekeeping, discussed in greater detail below, may limit the risk of these spills or releases.Unfortunately, however, environmental practices or controls were not as stringent in the past as they are today.Spills and releases of pollutants that occurred many years ago continue to persist today in soil and groundwater at or under the property. Continue reading “Environmental Issues Facing Auto Dealers” →

Environmental Protection at Construction Sites

Both Environmental Protection Agency (EPA) and the Louisiana Department of Environmental Quality (LDEQ) seek, through regulation, to limit the pollutants that are discharged from construction sites. Some recent developments may impact your current or future operations at these types of sites.

Stormwater Management

EPA tightened its regulation of storm water discharges from construction sites. These regulations, formally called effluent limitations guidelines, or ELGs, are essentially more detailed and elaborate best management practices (BMPs) to be used during construction activities. By using these more stringent and detailed BMPs, EPA hopes to decrease the amount of pollutants, such as oil and grease or sediments, in the storm water that leaves a construction site. Continue reading “Environmental Protection at Construction Sites” →

In re: Harrelson Materials Management, Inc., 2010-1950 (La. App. 1 Cir. 6/10/11)

The First Circuit upheld a permit to an existing solid waste facility.

Basic Facts

Harrelson Materials Management, Inc. operated a Type III solid waste landfill near the City of Shreveport. The facility had operated in that location since the later 1980s and received an initial Order to Upgrade in 1994. Its original permit application, submitted in 1995, stated that the total area of the facility was 29.86 acres. The local zoning authority confirmed in 1998 that the facility had a non-conforming use under local zoning ordinances, allowing it to operate within that acreage as a solid waste landfill.

In 2004, a revised application was submitted in which the total acres for which the permit was requested was increased to about 75 acres. LDEQ issued a series of notices of deficiencies, essentially requesting that Harrelson provide proof that the entire 75 acres had been approved by the local zoning authority. When Harrelson did not, or could not, LDEQ denied the revised application and rescinded the Order to Upgrade. Thereafter, in 2007, Harrelson submitted another application limiting the scope of the permit request to the original 29.86 acres (which had received non-conforming use approval in 1998).

LDEQ, after public notice and a comment period, issued a standard permit to Harrelson. LEAN filed a petition for review of the permit. Continue reading “In re: Harrelson Materials Management, Inc., 2010-1950 (La. App. 1 Cir. 6/10/11)” →

In re: Oil & Gas Exploration, Development & Production Facilities Permit, No. LAG260000, 2010-1640 (La. App. 1 Cir. 6/10/11), 2011 WL 2297790

The First Circuit held that LDEQ issued a general permit in a procedural fashion without individualized consideration or a fair balancing of environmental factors.

Basic Facts

LDEQ reissued an NPDES general permit for discharges of pollutants from oil and gas production into the territorial seas of Louisiana as an LPDES general permit. The LPDES general permit governs discharges of deck drainage, produced water, sanitary wastewater, and other such discharges from facilities into the territorial seas from exploration, development, and production facilities.

The original NPDES general permit was issued in 1997 and expired in 2002 but was administratively continued by LDEQ pending its review of the application for renewal. In responding to public comments and in its Basis for Decision, LDEQ noted that the provisions in the draft general permit were developed primarily using the federal effluent guidelines for the offshore sub-category of the oil and gas extraction point source category and that an Environmental Impact Statement concluded in 1996 that discharges under the NPDES general permit would not cause cumulative impacts. Continue reading “In re: Oil & Gas Exploration, Development & Production Facilities Permit, No. LAG260000, 2010-1640 (La. App. 1 Cir. 6/10/11), 2011 WL 2297790” →

LDEQ’s Proposed Revisions to the Solid Waste Regulations

The LDEQ has published a proposed update to the solid waste regulations. No. SW053. A public hearing will be held on April 27, 2011 and comments are due by May 4, 2011.

The proposed rule contains revisions to the regulations which LDEQ states “will change the way solid waste permits are issued along with the application process for solid waste permits.” Notice of Intent, SW053. Several of the more important revisions will be highlighted. Continue reading “LDEQ’s Proposed Revisions to the Solid Waste Regulations” →

Global Warming Pause’ Does Not Pause EPA’s Regulatory Efforts

The global warming (or ‘climate change’) debate has heated up in the last several months, creating what may prove to be a break in the so-called consensus that man-made factors are the primary cause of global warming. Although global warming may have ‘paused’ over the last fifteen years and other causes have been suggested for warming trends, these recently released inconvenient truths have not stopped EPA’s zeal for regulation. Continue reading “Global Warming Pause’ Does Not Pause EPA’s Regulatory Efforts” →

LDEQ’s Spill Prevention and Control Rule Amendment

LDEQ finalized amendments to the Spill Prevention and Control Rule (SPC Rule) (LAC 33:IX.Chapter 9) on August 20, 2010. WQ079. Three main changes will be addressed.

1. A definition of ‘oil’ is provided. Oil is “any kind or form of oil, including but not limited to: fats, oils, or greases from animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and other oils and greases including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, and oil mixed with waste other than dredged spoil.” Sec. 901.D. This definition is identical to EPA’s current regulatory definition, which was added in 2002. 40 CFR 112.2; 67 Fed. Reg. 47075-6 (July 17, 2002). Continue reading “LDEQ’s Spill Prevention and Control Rule Amendment” →

LDEQ Finalizes Several Rules in June

EPA recently published a draft guidance document entitled Best Management Practices for Unused Pharmaceuticals at Health Care Facilities, No. EPA-821-R-10-006, August 26, 2010. EPA requested comments from the health care industry regarding the proposed practices. 75 Fed. Reg. 54627 (Sept. 8, 2010). This is an opportunity for hospitals, medical clinics, doctor’s offices, and long-term care facilities to provide input to EPA on practices that may, at some point in the future, be made into regulatory requirements.

Unused pharmaceuticals include dispensed prescriptions that patients do not use as well as materials that are beyond their expiration dates. EPA identified several typical reasons why pharmaceuticals become wasted. These include expiration before use (because of excessive purchases or samples left with doctors expire before use), dispensed pharmaceuticals go unused (a dosage is changed, the patient refuses to take dispensed mediations, the patient dies or is transferred prior to taking all medications, the patient has an adverse reaction and the use of the dispensed medication is halted), or an error occurs in dispensing the medication. Continue reading “LDEQ Finalizes Several Rules in June” →