Jul 20, 2021

Federal Ruling Requires CWA Permit for Injection Wells

Groundwater Testing

In a ruling July 15, U.S. District Judge Susan Oki Mollway ordered Maui County to obtain a permit under the Clean Water Act (CWA) consistent with the analysis established by the Supreme Court’s April 2020 ruling that injection wells could fall under the CWA. The District Court decision marks a first-time application of the Supreme Court’s landmark test on when pollutants that travel through the groundwater require a permit. The Court reasoned that the discharge from the county’s injection wells into the groundwater, and ultimately into the ocean, is the functional equivalent of a direct discharge such that it triggers… Read more

Jul 7, 2021

White House CEQ to undo Trump Permitting Changes


On June 28, the White House Council on Environmental Quality (CEQ) announced an interim final rule that would give agencies until September 14, 2023, to propose revisions to their National Environmental Policy Act (NEPA) regulations.  The CEQ is targeting Trump Era changes which limited the scope of agency permit reviews for large projects, such as highways and bridges, to avoid consideration of cumulative impacts.  Cumulative impact analysis is commonly understood to refer to climate change when considering permit applications.  CEQ personnel are currently reviewing and analyzing the Trump Era changes for consistency with Biden’s January 25 executive order telling agencies to… Read more

Jun 22, 2021

EPA to Revise Lead and Copper Rule

On Tuesday, June 15, the EPA pushed back the effective date of the Trump-Era Lead and Copper Rule after receiving public feedback supporting a delay for the regulation.  The Trump‑Era Rule cut the percentage of a public water system’s lead pipes that need to be replaced annually from 7% down to 3%.  Environmental groups sued the EPA in January to block the regulation claiming that the Rule exposed more children to lead poisoning.  The Biden Administration EPA is reviewing and is expected to revise the Rule which is now set to take effect on December 16, rather than its original… Read more

Jun 8, 2021

Biden EPA’s Plans to Overhaul TSCA Chemical Assessments Sparks Debate Over PPE Use

PPE Equipment

The EPA has announced that it intends to reconsider Trump-Era assumptions on worker’s use of personal protective equipment (PPE) when conducting TSCA chemical safety evaluations.  Under the Trump-Era policy, the EPA assumed workers will follow workplace-safety mandates to wear PPE when gaging chemical exposure risk pursuant to TSCA mandated chemical assessments.  The EPA is now considering whether this assumption is reasonable, and whether the TSCA safety evaluations should consider that PPE guidelines and recommendations may not always be followed.  Critics of the more stringent approach being considered by the EPA have argued that if the EPA reaches its own conclusions… Read more

May 26, 2021

Supreme Court Reverses D.C. Circuit on Superfund Cost Recovery Statute of Limitations

The Supreme Court has reversed a DC Circuit decision which held that the territory of Guam was time-barred from pursuing a cost recovery action under CERCLA against the U.S. Government to pay its fair share for the clean-up of the Ordot dump.  Guam and the U.S. signed a Consent Decree under the Clean Water Act in 2004 requiring the territory to remediate the former Navy-owned Ordot dump from leaking into adjacent rivers.  Guam later filed a claim under the Federal Superfund law to recoup some of the clean-up cost.  The D.C. Circuit held that the claim was time-barred by CERCLA’s… Read more

May 12, 2021

Possible Regulatory Impact Likely After Colonial Pipeline Hack

Pipeline Attack

The May 6, ransomware attack against Colonial Pipeline is likely to increase cost for cyber insurance, and may prompt legislators to push for tougher standards for critical infrastructure resources such as pipelines, energy grids, and water systems.  The attack may prompt insurers to tighten the types of incidents covered, or to require companies looking for insurance to adopt stronger security standards before purchasing a policy.  In addition, the Biden administration is expected to direct responsible agencies such as the Cybersecurity & Infrastructure Security Agency, and the Federal Energy Regulatory Commission to take a serious look at heavier regulations for critical… Read more

Apr 28, 2021

Biden Administration to Restore California’s Authority to Limit Auto Emissions

The Biden administration is set to begin reversing Trump era policies that limited California’s ability to set vehicles’ emissions standards at a more stringent level than required by the federal government.  The Environmental Protection Agency is set to propose a waiver empowering California to mandate zero emission vehicles and to regular greenhouse gas emissions from tailpipes.  Before being blocked by the Trump EPA, California’s requirement set a model for the nation and was expected to be followed by states representing more than one-third of the U.S. auto market.  The transportation sector is now the largest single source of greenhouse gas… Read more

Apr 14, 2021

Challenge to Trump Rule Relaxing Clean Car Standards Put on Hold by D.C. Circuit

A D.C. Circuit has put on hold a challenge to a Trump administration decision to scale back standards for fuel efficiency and greenhouse gas emission for vehicles.  The Trump era rule lowered federal fuel efficiency standard reduction requirements from 5% to 1.5% annually through 2026.  A coalition of mostly democratic lead states sued to overturn the Trump rollback, and the Biden administration argued successfully before the D.C. Circuit to halt the proceedings while the EPA and the National Highway Traffic Safety Administration review the regulations. For more information, please contact Phillip Hoover.

Apr 1, 2021

OSHA Adopts National Emphasis Program (NEP) in Lieu of Adopting Emergency Temporary Standards to Address COVID in the Workplace


On March 15, OSHA adopted an NEP in response to President Biden’s Executive Order directing the agency to come up with a national program for COVID-19 enforcement priorities.  The NEP directs OSHA to conduct programmed inspections at work sites where employees have a higher frequency of close contact exposures and COVID outbreaks.  Industries targeted for heightened scrutiny fall into two categories:  (1) establishments in certain NAICS Codes which OSHA has identified as having higher rates of exposure; or (2) industries having an elevated illness rate based upon 2020 OSHA illness reporting data.  Many NAICS Codes on the list are related… Read more

Mar 17, 2021

“Diesel Brothers” Clean Air Act Lawsuit Threatens to Greatly Expand Standing Under Citizen Suits

Truck Pollution

A Federal District Court in Utah ruled that a group of physicians had standing to sue the host of a popular television show, “Diesel Brothers,” for alleged violations of the Clean Air Act resulting from modifications to pollution control devices installed on trucks.  At issue on appeal, is whether the Utah physicians for a healthy environment (UPHE”) group can allege a justiciable harm and demonstrate “redressability and causation” both of which are required elements to establish standing.  The Diesel Brothers argue on appeal that the UPHE cannot demonstrate that they were injured by the excess emissions caused by the vehicle… Read more