Environmental Issues and The Republican Majority

Expectations are running high among some that the incoming Republican majority in both Houses of Congress will act to change or eliminate various environmental regulations and statutory provisions that they claim harm the economy. Interest groups are extending these efforts to enlist State officials in opposing these regulations at that level and, for his part, President Obama has indicated an intent to use his veto authority in an effort to prevent major changes in regulation and policy.

One of the foremost issues of concern on the part of many Republicans is the proposal to limit carbon pollution from coal-fired power plants. In mid-December, 99 House members sent a letter to the President asking that he direct EPA to withdraw its proposed Clean Power Plan rule. (House letter). Similarly, various conservative groups have contacted State legislators and other elected officials calling on them to resist the Plan in any way possible. (The Hill). The States have substantial authorities for the implementation of air pollution control regulations under the federal Clean Air Act, just as they do with the implementation of other major federal environmental statute.

However, there are some indications that these position may not be quite as unified across the Republican leadership as first thought. For example, a recent interview given by Senator James Inhofe of Oklahoma to the Tulsa World indicates that initial efforts may focus elsewhere. Senator Inhofe, a leading denier of climate change science, will become the Chairman of the Environment and Public Works Committee the Senate’s key environmental committee. Yet, he indicated in the interview that initial focus of his chairmanship of would be on transportation and infrastructure. (Tulsa World). Also of interest, a recent poll conducted jointly by the Associated Press-NOR Center for Public Affairs Research and Yale University indicates that, while 6 in 10 Americans support regulation of carbon dioxide pollution, fully half of persons identifying themselves as Republicans hold the same position. (StarTribune). Even if the Republican majority eventually pushes substantial legislation through both Houses to affect environmental issues, including climate change, President Obama has promised a veto. (ABC Report).

While it seems clear that environmental issues will be at the forefront of Congressional debate in the upcoming Congress, it is not so clear how far this may go, or in exactly what direction. As we have seen before, exercising the powers of leadership often imposes restraints that are not in place when campaigning for leadership positions.

Dealing With NIMBYs in Local Land Use and Environmental Approval

A developer or property owner may have a permit application for a project that meets the criteria for the applicable regulations, and might receive approval from local government or environmental staff. At that point, the applicant thinks he or she is in good shape going into the public hearing with the city or county commissioners, only to walk in to commission chambers and discover a small army of citizens with identical t-shirts or “Save our Neighborhood” buttons protesting the application because they don’t want the development in their backyard — the dreaded NIMBYs (Not In My Back Yard). Developers need to be aware of potential conflict with a NIMBY group—and how an attorney can help.

Sometimes developers and property owners may not realize that despite careful work to meet all of the applicable requirements of local ordinances, they still may not get their permit approved if they are met with a groundswell of opposition from neighboring residents. The best way to deal with NIMBY opposition is to be prepared for it well in advance of the public hearing.

Early in the process, someone from the developer’s team (usually the attorney) should contact the district commissioner/council member to find out if he or she is in favor of the development. If so, and if the district commissioner/council member feels that he or she has been fully informed about the project, the process will run much more smoothly. If the commissioner/council member is not in favor of the development and in fact is strongly opposed, then the developer will know what sort of battle waits in the public hearing, and will need to make an informed decision about whether to proceed with the application.

From the beginning of a permit application, the applicant needs to find out if there is a possibility that the development could be controversial. The local government staff will often be aware of that potential. Questions need to be asked in the beginning of and throughout the application process. The city or county staff should be familiar with the local neighborhoods and grassroots organizations, and should know which organizations are most likely to have an issue with the development in question.

If it appears that an organization or neighborhood potentially may be opposed to the development application, the best course of action is probably to have a conversation with the group before the public hearing. Setting up a community meeting early in the process will allow the developer to become aware of and deal with possible objections on the front end. Some jurisdictions require one or more community meetings before a public hearing on certain development applications. Even if community meetings are not required, it is a good idea to be proactive and schedule a meeting, especially if the development is of significant size or impact.

At the meeting, it is best to be transparent about the proposed development plan. Neighbors want to know how the proposed project is going to impact their neighborhood. Allow the group to ask questions and answer them as candidly as possible. This dialog can be useful in meeting objections on the front end, and can lead to forging compromises in the beginning that can smooth the way for the future of the project. Transparency at these meetings can also help the elected officials. The district commissioner/council member should be invited to the community meeting, and should be kept informed of the substance of ongoing discussions with neighboring residents. If the commissioner/council member knows the developer is working on the process with the neighborhood or organization before the hearing, he or she will appreciate the proactive planning. Plus, it keeps the elected official well informed, and can smooth the way for the future public hearing.

These community meetings make the development’s approval much more process-oriented than legal-oriented. The meetings may seem time-consuming and expensive, but appellate litigation following a denial is much more expensive, as is an extensive delay to the project.

If a developer does get blindsided by an interest group in a hearing, the city or county officials may also have been blindsided. The first step might be to request a short recess to discuss options with the neighbors or the district commissioner/council member, which may or may not be granted. Alternatively, or as a next step while the meeting is going on, the attorney or the developer may identify 1-2 leaders of the protesting group, and try to work with them to define issues and discover common ground. The issue might be something as easy as a simple fix in the architecture of the development, or a resolution of potential traffic issues. The attorney may request that the application be postponed to another meeting.

A developer wants to have the best-case scenario to present in a hearing, but he or she should also have a fallback position for the bottom line necessary to make the project work. For example, how much density can the development give up and still make the numbers work? Are there architectural concerns that can be satisfied with permit conditions? In this case, it helps to know the elected officials. If there is a commissioner that is known for always wanting additional parkland, will your project be able to offer that and still make budget? If traffic-calming is another commissioner’s hot-button issue, can you change a traditional intersection to a traffic circle and still make your development plan work?

So what is the best defense against NIMBYs? The best defense is realizing that NIMBYs can pop up in almost any development application. Preparation from pre-application through the public hearing with an experienced professional will greatly improve your chances for success.

Bureau of Land Management Extends Public Comment Period on Fracking Rule

The federal Bureau of Land Management announced today that it will extend by 60 days the public comment period on its revised proposed rule on hydraulic fracturing on federal lands.

The comment period was set to expire June 24, and the additional 60 days will begin thereafter.

To view the proposed rule, please visit http://www.blm.gov/pgdata/etc/medialib/blm/wo/Communications_Directorate/public_affairs/hydraulicfracturing.Par.91723.File.tmp/HydFrac_SupProposal.pdf

For BLM’s synopsis of the draft rule, please visit http://www.blm.gov/wo/st/en/info/newsroom/2013/may/nr_05_16_2013.html

 

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

EPA Guidance Further Clarifies the Protections Available to Tenants Under Superfund’s BFPP Defense

As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) was amended in 2002 to provide a defense against liability for existing property contamination for a class of purchasers who were not otherwise responsible for the condition.  This is specifically referred to as the Bona Fide Prospective Purchasers (“BFPP”) defense.  It can be asserted to avoid liability under Superfund if a party can demonstrate its compliance with applicable requirements specified in the Act as augmented by regulations adopted by EPA.  Essentially, these require that a party exercise sufficient precaution by way of inquiry and investigation about a prospective property purchase (know as the All Appropriate Inquiry process) and comply with other applicable provisions.  Generally, these involve providing all required notices; the exercise of care to prevent making the contaminated condition worse; cooperation with remediation efforts;  and, compliance with any land use restrictions applicable to the property.  These rules were clearly applicable to purchasers of contaminated property, but they left open the status of tenants who leased property from purchasers who complied with BFPP rules.  Earlier guidance adopted by EPA made clear that a tenant of a land owner who is a qualified BFPP would also benefit from the protection.  The various options, including original guidance about tenants is found here on EPA’s website here.

On December 5, 2012, EPA issued additional guidance titled “Revised Enforcement Guidance Regarding The Treatment Of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision.”  This new guidance expands the prior guidance by making clear that even if a property owner does not qualify for the BFPP defense, its tenant may nonetheless qualify if the tenant independently meets the requirements for BFPP or “innocent” status.  The guidance, found here, also indicates that EPA will issue letters in the appropriate circumstances clarifying a tenant’s potential liability with respect to a particular parcel or transaction.  Samples of the letters are also included in the link.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Impact of the Fukushima Disaster on Nuclear Power Development in Tennessee

The original text of this article appeared in the November issue of the Tennessee Bar Association newsletter. Jarrod Blue, M.S. also contributed to this article.

On March 11, 2011, an earthquake and tsunami struck northeastern Japan causing widespread destruction and loss of life, as well as significant damage to the Fukushima Dai-ichi nuclear power facility.[iii]  As a result of the simultaneous natural disasters, there was a partial meltdown of three of the six reactors.[iv]  The Japanese government’s immediate response was establishment of a 20-kilometer evacuation zone around the disaster site.[v]  However, it was not until December 16, 2011, that the Japanese government announced that the damaged reactors reached “cold shutdown” status, which occurs when a reactor reaches atmospheric pressures and a temperature below 100 degrees Celsius.[vi]

NRC Task Force Recommendations

The costs of the Fukushima disaster is an evolving number, but has been estimated to reach over $250 billion.  As a result of the tremendous costs associated with that disaster, the United States Nuclear Regulatory Commission (“NRC”) formed a Task Force, which has conducted a four-month study to determine whether the agency should make additional improvements to its regulatory system and future policy direction.[vii]

The NRC Task Force found that although a Fukushima-like disaster is unlikely, some modifications should nevertheless be made to acknowledge cases of low-likelihood and high consequence events.[viii]  The NRC Taskforce recommended the following:

1.     Establish a logical, systematic and coherent regulatory framework for adequate protection that appropriately balances defense-in-depth and risk considerations.[ix]

2.     Require licensees to reevaluate and upgrade as necessary the design-basis[x] seismic and flooding protection of structures, systems, and components for each operating reactor.

3.     Evaluate the potential enhancements to the capability to prevent or mitigate seismically induced fires and floods.

4.     Strengthen station blackout mitigation capability at all operating and new reactor for design-basis and beyond-design basis external events.

5.     Require reliable hardened vent designs in boiling water reactor facilities with Mark I and Mark II containments.

6.     Identify methods of hydrogen gas control and mitigation within facilities.

7.     Enhance spent fuel pool makeup capability and instrumentation.

8.     Strengthen and integrate onsite emergency response capabilities, such as emergency operating procedures, severe accident management guidelines and extensive damage mitigation guidelines.

9.     Require facility emergency plans to address prolonged station blackout and multiunit events.

10.  Pursue additional emergency preparedness topics related to multi-unit events and prolonged station blackout.

11.  Pursue emergency preparedness topics related to decision-making, radiation monitoring, and public education.

12.  Strengthen regulatory oversight of licensee safety performance.[xi]

Tennessee Plants

Currently, there are two nuclear power plants in the state of Tennessee: Sequoyah and Watts Bar, both operated by the Tennessee Valley Authority (“TVA”).  As a result of an earlier study, using U.S. Geological Survey fault data, the NRC found that the Sequoyah Nuclear Plant is located in the fourth-highest earthquake risk area within the United States.[xii]  Thus, an earthquake at the Sequoyah Nuclear Plant could be devastating, which in a worst case scenario would yield an unprecedented amount of property damage.  The odds of an earthquake causing core damage at each of Sequoyah’s two reactors is 1 in 19,608, which are considerably better odds than a local resident being hit by lightning, a 1 in 500,000 chance.[xiii]

The greatest concern at the Sequoyah site is flooding, which was also a concern at the Fukushima site because of the tsunami.  Specifically, a NRC letter of January 25, 2012, noted that the sand baskets[xiv] at the site were not capable of withstanding debris associated with a flood along the Tennessee river in a worst-case flood scenario.[xv]  The debris from a worst-case scenario flood would pull the individual sand baskets apart and repairs during a flood would be impossible.[xvi]  Thus, the TVA is currently exploring permanent modifications that are environmentally friendly, which should be in place by the end of 2015.  Thus, before the Sequoyah Nuclear Plant makes its final modifications to prevent flooding, the Task Force would encourage the continuous reevaluation of flood hazards at designated intervals in time.  The continuous evaluation is especially important to existing plants, which have the potential to be less resilient to a natural disaster.

Tennessee’s existing plants may be impacted by earthquakes and floods.  As a result of the Fukushima disaster, the Department of Energy has retained its support of nuclear power, but indicated that companies applying for nuclear loan guarantees will have to demonstrate their safety as a condition of government financing.[xvii]  TVA is in the midst of constructing a second nuclear reactor at Watts Bar.[xviii]  That project has faced challenges, one of which includes core deficiencies that have the potential to undermine the entire project if not addressed.[xix]

Public Participation

Currently, the NRC is conducting public meetings to solicit participation on its recommendations and their implementation.[xx] As of this publication, the TVA has not yet conducted similar meetings in Tennessee to aid in the establishment of a logical regulatory framework.  Thus, a responsibility rests with the legal community to advise clients as to the impacts and risks that may be associated with being in proximity or assisting in the operation of a nuclear power plant.  The impacts of a natural disaster can be catastrophic as evidenced by the damage to the Fukushima Da-ichi plant.

Conclusion

As a result of the operation of nuclear power plants in Tennessee and the construction of a new nuclear reactor in the state, there are a few lessons that can be taken from the Fukushima disaster:

·      Due to the location of Tennessee’s nuclear power plants within earthquake zones and potential flood areas; we should address the risks associated with a natural disaster, regardless of how low the risk of actual occurrence.

·      As nuclear power plants begin to age and become eligible for NRC license renewal, they should be periodically monitored. Furthermore, the mechanisms utilized to compensate for natural disasters, like sandbagging, should be evaluated to see if new technology will be more responsive to a natural disaster.

·      As a result of the Fukushima disaster, it may become more difficult to obtain approval for new power plants within the state, due to a higher degree of safety scrutiny.

·      Siting of new facilities should consider the likelihood of natural disasters and utilize a defense-in-depth approach to design basis.

The above list is not exhaustive, but is a suggested step forward as Tennessee continues to utilize and expand its use of nuclear power.

 

Endnotes:


[i] Law Student at the University of Tennessee College of Law

[ii] Partner at Burr & Forman, LLP

[iii] Tison Campbell & Tyson R. Smith, Introduction, ABA Energy Committees Newsletter 1 (2012).

[iv] Id.

[v] Id.

[vi] Id.

[vii] Recommendations For Enhancing Reactor Safety in the 21st Century (July 12, 2011), http://www.psr.org/assets/pdfs/recommendations-for-enhancing-reactor-saf…

[viii] Id.

[ix] Defense-in-depth is defined by the NRC as an approach to designing and operating nuclear facilities that prevents and mitigates accidents that release radiation or hazardous materials.  They key is creating multiple independent and redundant layers of defense to compensate for potential human and mechanical failures so that no single layer, no matter how robust, is exclusively relied upon.  Defense-in-depth includes the use of access controls, physical barriers, redundant and diverse key safety functions, and emergency response measures.  For further information, see Speech No. S-04-009, “The Very Best-Laid Plans (the NRC’s Defense-in-Depth Philosophy.)

[x]  Design-basis accident or phenomena is defined by the NRC as earthquakes, tornadoes, hurricanes, floods, and postulated accidents that a nuclear facility must be designed and built to withstand without loss to the systems, structures, and components necessary to ensure public health and safety.

[xi] Recommendations For Enhancing Reactor Safety in the 21st Centuryat vii-ix.

[xii] Pam Sohn, Nuclear plants told to reassess earthquake risks, Times Free Press, February 5, 2012.

[xiii] Id.

[xiv]   Sand baskets are temporary wire cages of sand placed atop the sides and embankment to raise the height of the dam.  Pam Sohn, TVA uses sand baskets as temporary fixes for flawed flooding calculations, Times Free Press, Aug. 5, 2011.

[xv] Id.

[xvi] Id.

[xvii] Herman Wang, Fukushima will not affect US nuclear loan guarantee program, Platts, March 31, 2012.

[xviii] Paul Leach, TVA says Watts Bar key to local power, economy, Times Free Press, June 8, 2012.

[xix] Id.

[xx] http://www.nrc.gov/reactors/operating/ops-experience/japan/japan-meeting-briefing.html

Approaching Compliance Dates: Stationary Engines

Compliance dates for the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), 40 CFR 63 Subpart ZZZZ, for existing sources are soon approaching. In 2010, EPA expanded the applicability of this rule to control hazardous air emissions not only from new engines but also existing engines, regardless of whether those engines are located at major source or area (minor) sources of HAPs.

Types of engines covered include non-emergency engines used for power generation (including peak shaving), emergency backup power generators, and emergency fire pumps.  Many of these engines are exempt from air quality permitting but are still subject to the RICE NESHAP.

Diesel fueled engines have a compliance date of May 3, 2013, and natural gas and gasoline fueled engines have a compliance date of October 19, 2013.

Key requirements of the RICE NESHAP include:

• Emissions control requirements for certain types of non-emergency engines.

• Operation and maintenance (O&M) and work practice requirements for emergency engines and certain types of non-emergency engines.

• Limits on non-emergency running hours for emergency engines.

• Record keeping requirements.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

FTC Issues Revised “Green Guides”

On October 1, 2012, after many years of study and evaluations of several iterations, the Federal Trade Commission issued revised “Green Guides” targeting environmental marketing claims. The revised Green Guides include updates to the existing Guides and new sections on the use of carbon offsets, “green” certifications and seals, and renewable energy and renewable materials claims.

The modified Guides warn against making broad, unqualified claims that a product is “environmentally friendly” or “eco-friendly”, deeming these claims “nearly impossible to substantiate.”

The Guides also:

  • Caution against claiming a product is “degradable” unless it can be proven that the entire product or package will completely break down and return to nature within one year after disposal
  • Clarify guidance on compostable, ozone, recyclable, recycled content, and source reduction claims
  • Include new sections on: 1) certifications and seals of approval; 2) carbon offsets, 3) “free-of” claims, 4) non-toxic claims, 5) made with renewable energy claims, and 6) made with renewable materials claims.

Importantly, the Guides do not address use of the terms “sustainable,” “natural,” and “organic.”

According to the FTC, the Green Guides “describe the types of environmental claims the FTC may or may not find deceptive under Section 5 of the FTC Act. Under Section 5, the agency can take enforcement action against deceptive claims, which ultimately can lead to Commission orders prohibiting deceptive advertising and marketing and fines if those orders are later violated.”

More information about the new Green Guides can be found here: http://www.ftc.gov/opa/2012/10/greenguides.shtm

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Welcome to Burr & Forman’s Environmental Law Matters Blog!

The complex system of environmental laws and regulations impact our clients’ businesses in a variety of contexts. Our attorneys regularly counsel clients on environmental legal issues arising in business strategy, regulatory compliance, permitting, transactions and resolution of disputes. Land conservation, historic preservation, brownfield redevelopment, environmental remediation, recycling, greenhouse gas, climate change, and regulation of air, water and wastes, all have the potential to pose challenges to corporate or real estate transactions. Our attorneys have a long history of handling such matters, and handling environmental cases in state and federal courts.  We have launched this blog to help our clients keep up with news, statutory changes, legal opinions and practical tips involving all areas of environmental law.

Because many of the laws relating to the regulation of environmental issues are state-specific, we will focus on developments in Burr & Forman’s Southeastern footprint of Alabama, Florida, Georgia, Mississippi, and Tennessee. However, we will also cover any particularly impactful or interesting events in other parts of the country and at the Federal level.

We hope that our clients, as well as other interested parties, will find this blog informative and entertaining and will make it a regular part of their reading. If you ever have a question about something on the blog or have an environmental legal issue, feel free to contact any of Burr & Forman’s Environmental team members, and we will be happy to assist you. If you need help in a state outside of Alabama, Florida, Georgia, Mississippi, or Tennessee, let us know. We have aligned our firm with trusted practices across the country and around the world, and we will get your questions answered at the right law firm.

Thanks for reading!