Contaminated Properties and Waste

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Latest court ruling further underscores circuit split on groundwater conduit theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

The US District Court for the Central District of Illinois has held that power plant owners are not liable under the Clean Water Act (CWA) for discharges of pollutants from coal ash disposal facilities through groundwater to waters of the US. The November 14 ruling is the latest in a series of recent defeats of CWA citizen suits premised on the so-called “groundwater conduit” theory.

Plaintiffs in Prairie Rivers Network v. Dynegy Midwest Generation, LLC initiated a CWA citizen suit against the owners of the Vermilion Power Station, a retired coal-fired power plant in Illinois. Plaintiffs alleged that defendants unlawfully discharged pollutants into groundwater from unpermitted seeps in their coal ash disposal facility and this groundwater was hydrologically connected to the Middle Fork of the Vermillion River. The district court relied on prior US Court of Appeals for the Seventh Circuit precedent (outside the coal ash context), holding that the CWA does not govern discharges of pollutants into groundwater, even if there is a hydrologic connection between the groundwater and waters of the US. Unlike other recent cases evaluating CWA liability from coal ash facility seepage into groundwater, this court did not address whether the coal ash facility was a “point source” under the CWA, given the existing circuit court precedent on the groundwater conduit theory.

The report supports the efforts of the EU’s Seventh Environment Action Programme.

By Alexander Wilhelm

According to a report prepared by the Joint Research Centre (JRC) — the European Commission’s science and knowledge service — countries across Europe are making progress on tackling soil contamination. The report[i] states that the management of contaminated sites in Europe has improved substantially. The survey prepared by the JCR scientists included 39 countries, of which 25 are EU Member States. Within the EU there are an estimated 2.8 million sites where artificial surface indicates that polluting activities have occurred in the past. According to national and regional inventories of countries that replied to the report’s questionnaire, more than 650,000 sites are registered where polluting activities took or are taking place. The number of remediated sites or sites under aftercare measures has increased from 57,000 to 65,500 in the last five years. Although these inventories are more accurate than ever before, investigations of more than 170,000 sites are still pending.

Soil contamination means reduced soil quality because harmful substances resulting from human activity are present. In general, such contamination violates private or public interests, and can even harm human health or the environment. According to the report, mineral oils and heavy metals are the most frequent contaminants. The excavation and the off-site disposal of contaminated plots are the most frequently used remediation techniques — also known as “dig-and-dump.” With the help of the provided data, JCR scientists have revealed that an average of €4.3 billion is spent to tackle soil contamination in the surveyed countries, of which more than 42% is taken from public funds. According to the report, this is due to the divergent application of the “polluter-pays” principle, which is applicable to historical contamination only in a few countries. Those differences in the legal treatment of historical contamination should be assessed carefully not only by the current owner, but also by any prospective buyer.

Polluters of one of China’s most polluted waterways are increasingly facing prosecution through coordinated local and national efforts.

By Paul A. Davies and R. Andrew Westgate

Chinese authorities have been increasing their efforts to prosecute environmental offenders along the Yangtze River, the third-longest river in the world and the longest in Asia. The crackdown reflects China’s goal to make 70% of its surface water safe to consume by 2020.

Water Pollution: A Serious Problem for China

China’s government has good reason to take the problem of water pollution seriously. In 2012, a senior official from the water ministry acknowledged that 20% of China’s waterways were classified as toxic, while 40% were seriously polluted. The World Bank has further noted that water pollution could have “catastrophic consequences for future generations,” and that the problem is compounded by the fact that China does not have enough water for its population to safely consume. (For more information on China’s water supply, see Latham’s previous blog post).

The Circular Economy Package aims to “close the loop” of product lifecycles through greater recycling and re-use.

By Paul A. Davies, Eun-Kyung Lee, and Patrick Braasch

The Circular Economy Package includes four directives that were adopted by the European Parliament on 18 April 2018 (see Latham’s previous post) and by the EU Council on 22 May 2018. The directives were recently published in the Official Journal (OJ L 150, 14 June 2018), and entered into force on 4 July 2018 and Member States should implement the directives within a two year period.

The legislative package amends:

  • The Waste Framework Directive (2008/98/EC)
  • The Landfilling Directive (1999/31/EC)
  • The Packaging Waste Directive (94/62/EC)
  • The Directives on end-of-life vehicles (2000/53/EC), on batteries and accumulators and waste batteries and accumulators (2006/66/EC), and on waste electrical and electronic equipment (2012/19/EU)

The overall goal of the directives is to improve EU waste management. This will contribute to the protection, preservation, and improvement of the quality of the environment as well as encourage the prudent and rational use of natural resources. More specifically, the directives aim to implement the concept of “waste hierarchy”, which has been defined in Article 4 of the Waste Framework Directive. The waste hierarchy sets a priority order for all waste prevention and management legislation and policy which should make any disposal of waste a solution the last resort:

  1. Prevention
  2. Preparing for re-use
  3. Recycling
  4. Other recovery, e.g., energy recovery
  5. Disposal

China’s uneven distribution of water sources presents unique difficulties to China as demand for water is increasing rapidly.

By Paul A. Davies and R. Andrew Westgate

China’s water supply problems are well-known globally. However, the main problem facing China is how to distribute its water, rather than lack of water per se. 80% of China’s water supply lies in southern China. But this water cannot be used by the population of 12 Chinese provinces representing 41% of its total population, 38% of Chinese agriculture, 46% of its industry, and 50% of its power generation. Eight of these provinces are currently experiencing acute water scarcity, while in four provinces water is merely “scarce,” and two provinces are largely desert. Moreover, the problem is getting worse, with 28,000 rivers in China having dried up over the past 25 years. And China’s appetite for water continues to grow, with consumption forecast to rise to 670 billion cubic meters a year by the early 2020s.

Adding to the problem is the fact that coal mining is a water-intensive as well as polluting process, and 85% of coal reserves in China are located in provinces where water is scarce and must be shared with a large agriculture industry. Reportedly 20% of all water use in China is for mining, processing, or consumption of coal, and almost 70% is for agricultural purposes. Rapid growth in water demand, combined with a reliance on groundwater drawn from aquifers, has resulted in a new problem — subsidence. This poses a threat to over 50 cities in China and is being closely monitored by the government.

Member States will follow a single EU legislative framework merging industrial policies and environmental protection to encourage sustainable economic and social development.

By Paul A. Davies and Jörn Kassow

The European Parliament adopted the new Circular Economy Package, on 18 April 2018, setting ambitious, legally binding EU targets for waste recycling and reduction of landfilling. The package aims to further increase municipal waste recycling and lower the amount of landfilling. Currently, over a quarter of municipal waste is still landfilled and less than half is recycled or composted. This has a negative impact on the environment, climate, human health, as well as the economy.

Through the updated waste management legislation, the EU promotes a shift to a more sustainable model known as the circular economy. This is a model of production and consumption that extends the lifecycle of products, components, and materials, to reduce waste disposal to a minimum. This shall replace the former linear economic model, which is based on a “take-make-consume-throw away” pattern and therefore wastes a lot of resources and energy.

The multi-pronged plan will encourage a collaborative national effort to dispose of France’s “consume and discard” model.

By Paul A. Davies

The French Prime Minister recently unveiled the country’s circular economy roadmap. The 50-item scheme, announced on 23 April 2018, is the result of consultation with stakeholders (November 2017 —January 2018) and a two-stage online public participation involving the solicitation of comments and then the submission of draft roadmap (November 2017—February 2018).

The roadmap

Some measures are new and some derive from Law n°2015-992 of 17 August 2015 on energy transition, which was the catalyst for the nation’s circular economy scheme in a variety of respects. By 2019, the roadmap will be followed by a bill and regulatory measures transposing the EU’s Circular Economy Package objectives, which will lead to the amendment of the following directives:

  • Waste
  • Packaging waste
  • Landfill
  • Waste Electrical and Electronic Equipment Directive (WEEE)
  • End-of-life vehicles
  • Waste batteries
  • Accumulators

The government’s plan to tackle internal and imported plastic waste is the latest phase in China’s clean energy commitment.

By Paul A. Davies and R. Andrew Westgate

Although China’s ambitious targets for reducing carbon emissions and air pollution have received global attention and coverage, the country’s significant steps to reduce solid waste pollution have been subject to less scrutiny. Plastics, which are both manufactured and imported into China for recycling in vast quantities, are a case point. The National Development and Reform Commissions (NDRC), China’s key economic planning body, has frequently affirmed its commitment to reducing plastic waste pollution. To further this objective, the NDRC is expected to revise a 2008 order, which banned the production and sale of plastic bags less than 0.025 millimetres thick. The order also made it compulsory for retailers to charge customers for plastic bags.

Spain takes a further step towards sustainable development with consultation on draft Circular Economy Strategy.

By Rosa Espín and Leticia Sitges

The Ministry of Agriculture and Fisheries, Food and Environment has launched a public consultation on a draft Circular Economy Strategy, which will involve the business sector, not-for-profit entities, and citizenship in the drafting process. The public consultation was open for comments until 12 March 2018.

One of the main problems of the linear traditional economy is the large production of waste that is not recycled nor valorized. According to the latest Eurostat data, Spain produced 111 million tons of waste in 2014, out of which only 24.32% was recycled (which is several points below the EU average of 36%). The draft Circular Economy Strategy aims to address this through the implementation of the so-called “circular economy,” in which the value of products, materials, and resources is maintained in the economy for as long as possible and waste generation is minimized. Achieving sustainable development is a key point of this strategy, in line with the objectives set out by the Paris Agreement and the Sustainable Development Agenda 2030 adopted by the United Nations.