LDEQ’s Proposed Rule for Regulatory Permits for Concrete Manufacturing Facilities

LDEQ recently published Proposed Rule AQ299, ‘Regulatory Permits for Concrete Manufacturing Facilities.’ The proposed rule for concrete manufacturing facilities is the fifth regulatory permit proposed for air emission sources.

Regulatory Permitting

To put this proposal in context, the LDEQ was authorized in 2006 to develop regulatory permits. Acts 2006, No. 115. The Legislature authorized these types of permits for certain air emissions and water discharges.

LDEQ published rules governing the issuance of regulatory permits for air emissions. LAC 33:III.Chapter 3. To-date, LDEQ has issued regulatory permits for oil and gas well testing (§III.307), releases of natural gas from pipelines (§III.309), emergency engines (§III.311), and portable air curtain incinerators (§III.313). In each case, LDEQ has published a three to four page notification form (the ‘application’) for coverage under the RP provision. Continue reading “LDEQ’s Proposed Rule for Regulatory Permits for Concrete Manufacturing Facilities” →

LDEQ Initiative Provides New E & P Waste Disposal Option

Oil and gas drilling activity produces many benefits for the state. However, it also produces waste materials that must be properly handled. Recently, LDEQ provided generators with what could become a cost-effective and environmentally protective disposal option.

Traditionally, the Louisiana Department of Natural Resources (LDNR) provided two options for the disposal of Nonhazardous Oilfield Waste (NOW), or Exploration and Production Waste (E&P Waste). Waste Type 2 (oil-based drilling wastes) and Waste Type 3 (water-based drilling wastes) are created during the drilling process. LDNR allows on-site disposal of these wastes, under certain strict conditions. However, if the criteria are not met, the E&P Wastes must be moved off-site to an LDNR-permitted commercial facility. Waste Type 16 (crude oil spill clean-up waste) can be generated both on-site and off-site due to leaks or spills from storage tanks, pipelines, transport vessels, or transfer procedures. Waste Type 15 is E&P Waste from a LDNR-permitted commercial facility. Continue reading “LDEQ Initiative Provides New E & P Waste Disposal Option” →

LDEQ’s Denial of Hearing Request Overturned

A district court decision recently overturned an LDEQ denial of our client’s request for hearing. While LDEQ has some discretion in denying hearing requests, LDEQ’s discretion is limited by the constitution and applicable statutes. Not every LDEQ denial is proper.

Background: LDEQ usually has one of three responses to a request for hearing by a permittee or a respondent: deny the request, enter into Informal Dispute Resolution (IDR), or grant the request. When it determines that the matter is easily resolvable, LDEQ usually grants the request (and the matter is transferred to the Division of Administrative Law (DAL) for handling) or enters into IDR. However, in matters that are contested, controversial, or perhaps when LDEQ knows its position may be indefensible, LDEQ has denied hearing requests. This is important for two reasons: 1) unless the permittee or respondent files an expensive application for judicial review with the 19th JDC, the permit action or compliance order/penalty assessment will become final; and 2) LDEQ can appeal from an adverse decision in the 19th JDC. On the other hand, current law prohibits LDEQ from appealing any adverse decision rendered against it in the DAL. The permittee or respondent, however, can appeal. LDEQ’s denial of the hearing request may be designed to avoid potentially contested adjudications in the DAL, from which LDEQ cannot appeal, so that the adjudication occurs in the 19th JDC, from which LDEQ can appeal. Continue reading “LDEQ’s Denial of Hearing Request Overturned” →

Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again

Clean Water Restoration Act, S.787

This bill (S. 787) seeks to substantially expand the jurisdictional reach of the Clean Water Act, and that of the regulatory agencies administering the Act, by amending two key definitions. S. 787 will remove the definition of ‘navigable waters’ that has been included in the Act since its enactment and will replace it with a new, broadly defined statutory term, ‘waters of the United States.’ That term has been defined in EPA and Corps regulations for many years. However, the bill will provide a statutory definition of the ‘waters of the United States’ that expands the prior regulatory definition to include, among other things, “all interstate and intrastate waters and their tributaries” and “wetlands” “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.” Note that the definition not only includes the actual waters, but ‘activities affecting these waters.’ Continue reading “Clean Water Restoration Act, S. 787 and SPCC Rule Finalized, Again” →

Environmental Justice Efforts Renewed

Environmental justice was touted by then-candidate Obama as central to his environmental platform. See Environmental Update, Dec. 12, 2008 (attached). Now, President Obama has required the EPA, acting through Administrator Lisa Jackson, to make environmental justice a ‘focus’ of the agency’s activities. Ms. Jackson stated that the agency should focus on “the poor and underserved” so that environmental issues “connect with people’s brain space on the things they deal with every day.” BNA, Vol. 40, No. 30, p. 1785, July 24, 2009. Continue reading “Environmental Justice Efforts Renewed” →

Arranger Liability Under CERCLA

The U.S. Supreme Court recently clarified ‘arranger’ liability under CERCLA in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S., May 2, 2009. This case has significance for any seller of an unused and useful product, such as pesticides, herbicides, solvents, or other chemicals, that may also be classified as a hazardous substance. The pertinent portion of the case focuses on Shell’s liability for its sale of a product, in this case, a pesticide, to a company where the pesticide was leaked and spilled onto the ground during transfers of the pesticide between the delivery trucks, tanks, and other equipment. Continue reading “Arranger Liability Under CERCLA” →

Greenhouse Gas Emissions and Cap and Trade

On March 10, 2009, EPA proposed a sweeping regulation to “require reporting of greenhouse gas emissions.” EPA-HQ- 2008-0508, p. 1. The list of potentially affected industries is lengthy, encompassing “all sectors of the economy.” Id. The proposed rule would require reporting of annual emissions of carbon dioxide (CO2), methane (CH4), and several other ‘greenhouse gases’ (GHG). Id., at p. 19. EPA states that GHG from “human activities are … very likely influencing the earth’s climate.” Id., at p. 26. EPA estimated the compliance costs for the first year of reporting would be $168 million, with an annualized cost thereafter of $138 million. Id., at pp. 778-779. Continue reading “Greenhouse Gas Emissions and Cap and Trade” →

Construction Sites – EPA Proposes Tightened Storm Water Standards

Construction Sites – EPA Proposes Tightened Storm Water Standards

The EPA has been proposing tighter regulation of storm water discharges from construction sites. In the rule proposed on November 28, 2008, EPA establishes minimum requirements that will apply nationally. 73 Fed. Reg. 72562 – 72614 (Nov. 28, 2008).

All construction sites will be required to implement a range of erosion and sediment control best management practices (BMPs) to reduce pollutants in storm water discharges. Erosion controls are considered effective when bare soil is uniformly and evenly covered with vegetation or other suitable materials, storm water is controlled so that rills and gullies are not visible, sediment is not visible in runoff from these areas, and channels and streambanks are not eroding. Effective sediment controls include a variety of practices that are designed to remove sediment within the range of particle sizes expected to be present on the site. The proposed rule provides minimum standards that must be achieved through use of BMPs. Continue reading “Construction Sites – EPA Proposes Tightened Storm Water Standards” →

Recent Rules by Bush to be Rolled Back?

Recent Rules by Bush To Be Rolled-Back?

It was reported by the Associated Press on November 15, 2008 that the U.S. Congress may use the Congressional Review Act of 1996 to overturn federal regulations that have been recently issued by the Bush Administration. A spokesperson for Rep. Edward Markey (D – Mass) stated that Rep. Markey would consider repealing regulations he considers “egregious.’ Mentioned in the article are recent rules relating to global warming and greenhouse gases, rules easing hazardous waste restrictions, and rules relating to exemptions for water permits and oil refinery emissions. Continue reading “Recent Rules by Bush to be Rolled Back?” →