Apr 26, 2023

Lawsuit Challenges USFS CWA Permits for Aerial Firefighting

The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species. FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until… Read more

Apr 11, 2023

Bill Introduced in the House to Finance Utilities’ LSL Replacement Efforts

In early March, Democrats Dan Kildee (D-MI) and Senator Michael Bennett (D-CO) reintroduced their “Financing Lead Out of Water (FLOW) Act,” which would amend the Federal Tax Code to allow public water systems to pay for replacement of privately owned Lead Service Lines (LSL) with tax-exempt bonds. Currently, in order to qualify for tax exempt bonds, water system replacement efforts by large municipalities must pass the IRS’ “private business use test” to access tax-exempt bonds. Under the test, municipalities must certify that the funds will not be used to benefit private business above a certain threshold. The FLOW Act would… Read more

Mar 27, 2023

EPA Publishes Draft “Cumulative Risk” Assessment Procedures Under TSCA

The EPA has release a proposed guidance document for conducting cumulative risk assessments (“CRA”) under the Toxic Substances Control Act (“TSCA”). The guidance is designed to assist the EPA to characterize and quantify the combined risk to health and/or the environment from multiple chemical agents and/or stressors. Under the Biden Administration, consideration of cumulative risk is a top priority for the EPA in its efforts to address environmental justice concerns. The draft guidance notes that disadvantage communities often face multiple pollutants from multiple media which overlap with the adverse effects of poverty and other socioeconomic factors. However, it takes a… Read more

Mar 13, 2023

EPA Proposes Strict Clean Water Act Treatment Technology for Coal-Fired Power Plants

On March 8th, the EPA proposed an Effluent Limitation Guidance (ELG) rule designed to meet a “zero discharge” goal for the steam electric power generating point source category. The proposal includes requirements for advanced membrane treatment technology which the EPA believes is necessary to meet the CWA’s definition of “best available technology” required by the ELG. ELGs are technology based treatment mandates that the EPA adopts to represent the greatest pollution reductions an industry can achieve through economically feasible methods. The EPA’s proposed rule will also set tighter discharge standards for flue-gas desulphurization wastewater, bottom ash transport water, and combustion… Read more

Mar 3, 2023

Bills Pending in the New York City Council to Enact Laws Regulating the Purchaser Approval Processes of Cooperatives

Cooperative boards should be aware that there are three bills pending before the New York City Council that, if passed, will impose substantial requirements on the purchaser application process in all cooperatives in New York City with 10 or more apartments. Boards should consider whether to reach out to their council members, the members of the Committee on Housing and Buildings listed below, or the Mayor to express their views on the wisdom of the proposals. The bills are Intro. 0914-2023, Intro. 0915-2023 and Intro. 0917-2023. Under current law, Boards must abide by all federal, state and city anti-discrimination laws,… Read more

Feb 28, 2023

Negotiating the Use Provision in a Commercial Lease

One of the most overlooked but vital provisions when negotiating a commercial lease is the “use” provision. The “use” provision should be carefully negotiated at the letter of intent stage to avoid any subsequent negotiation problems down the line. Specifically, the landlord and tenant must understand the differences in the legal impact between (1) the permitted use clause, (2) the exclusive use clause, and (3) the prohibited use clause. As I will show you in the details below, it is critical that these provisions be carefully reviewed and negotiated by lawyers for both sides that have specific expertise in this… Read more

Feb 27, 2023

U.S. Attorneys’ Office Issues New “Self-Disclosure” Penalty Policy for Environmental Crimes

On February 22, the U.S. Attorneys’ Office issued a new, voluntary self-disclosure policy encouraging companies to reveal potentially criminal conduct for environmental crimes. For qualifying self‑disclosures, the policy can result in significant penalty reductions, and is intended to incentivize corporate compliance programs capable of identifying misconduct, and encouraging companies to rapidly address the underlying noncompliance. Under the policy, a company is considered to have made a voluntary disclosure if it becomes aware of misconduct and publicly reports the misconduct to the DOJ in a timely fashion prior to an eminent threat of disclosure. Companies that make qualified, voluntary disclosures may… Read more

Feb 13, 2023

EPA Expects Legal Challenge to Veto of 404 Permit

On January 31, the EPA issued a final determination vetoing the controversial Pebble Mine Project in Bristol Bay, Alaska. The EPA utilized its authority under 404(c) to block construction of a massive mine near Bristol Bay – home to one of the world’s largest salmon fisheries. The EPA’s decision bars the Pebble Mine Project from dumping mine waste into Alaska’s Bristol Bay watershed, which the EPA determined would have unacceptable, adverse impacts on the salmon fishery and other environmental receptors. The EPA and the Army Corps of Engineers share responsibly for dredge–and–fill permitting under Section 404 of the Clean Water… Read more

Feb 6, 2023

Rapping Up a RICO: The Use of Rap Lyrics As Admissions In The Young Thug Trial

Remember when The Chicks (previously known as the Dixie Chicks) were indicted for killing ‘Earl’ after they admitted to poisoning him in their song “Goodbye Earl”? What about Johnny Cash being convicted for shooting a man in Reno, something he confessed to in “Folson Prison Blues”? If your memory is failing you, it’s because those violent lyrics weren’t used against those artists; instead, it was universally understood the lyrics were part of the art, persona, and hyperbolic creative expression of The Chicks and Cash. But in his criminal proceedings, prosecutors are using Grammy award-winning rapper Young Thug’s lyrics to support… Read more

Jan 30, 2023

EPA Published WOTUS Rule on January 18, 2023

The U.S. EPA released a controversial new rule defining regulated “waters of the United States” on January 18, 2023. The Publication began the 60-day clock for critics to challenge the rule in Federal Court. The new Rule is expected to closely track the pre-publication version that was released by the PEA on December 30. Under the proposed rule, the EPA and the Corps will be directed to apply WOTUS Standards developed prior to 2015 and the controversial WOTUS definition issued by the Obama Administration. The new Rule attempts to reconcile the narrow “continuous surface connection” between “relatively permanent” waters, and… Read more