Environmental and Sustainability Law Archives

Aug 7, 2019

Environmental Groups Challenge EPA’s New Lead Standard Rule

On July 9, the U.S. EPA issued its “review of the dust lead hazard standards and the definition of lead-based paint” under which the EPA left largely intact, the existing standards and definitions. The Sierra Club has petitioned the 9th Circuit to review the new standards for “dust lead,” which include a decision by the EPA not to change the definition of lead-based paint. The standards are used to determine whether lead hazards exist in homes, childcare facilities and surrounding soil. In the case, A Community Voice v. EPA, the petitioner’s allege that the new standard does not take into… Read more

Aug 1, 2019

Federal Mine Regulators Issue Guidance on Refuges

On July 26, 2019, the Federal Mine, Safety, and Health Administration (“FMSHA”) issued a new policy letter on emergency refuges for workers in underground mines. The letter, which applies only to metal and nonmetal mines where minerals are excavated, requires the installation of refuges – which are safe areas in mines where workers can retreat in the event of an emergency such a as collapsed roof. The letter specifically exempts coal mines from the requirements. Industry representatives have expressed concern that the guidance is actually rulemaking in that it imposes new requirements without going through the procedural due process requirements… Read more

Jul 24, 2019

EPA Expected to Release Proposal to Modify New Source Review

The EPA is expected to release a proposed rule or policy for public comment regarding changes to the Clean Air Act’s pollution permitting program known as New Source Review. On July 17, the White House Office of Management and Budget completed its review of the proposed rule (RIN:2060-AT89), which is typically the final step before EPA releases a proposal. Under the current permitting program, power plants, refineries, and other large industrial sites must implement updated pollution controls in the event a new facility is built or an existing one is amended in a way that increases emissions. Under the proposed… Read more

Jul 17, 2019

EPA Announces Six National Compliance Initiatives for 2020-2023

In June 2019, the U.S. EPA’s Office of Enforcement & Compliance Assurance announced that it has selected six National Compliance Initiatives (“NCIs”) for fiscal years 2020 through 2023. The six priorities are (1) reducing excess air emissions of harmful pollutants from stationary sources; (2) reducing toxic air emissions from hazardous waste facilities; (3) reducing risks of accidental releases at industrial chemical facilities; (4) stopping the manufacture, sale, and installation of aftermarket defeat devices for emission controls on vehicles and engines; (5) reducing “significant noncompliance” with wastewater discharge permits; and (6) reducing noncompliance with drinking water standards at community water systems…. Read more

Jul 10, 2019

EPA Lowers Dust-Lead Hazard Levels in Advance of Court Ordered Deadline

On June 21 the EPA released updated dust-lead hazard standards which reduce the acceptable levels from 40 μg per square foot to 10 μg per square foot for floors, and from 250 μg per square foot to 100 μg per square foot for window sills. The standards apply to most pre-1978 housing and child-occupied facilities, such as daycare centers and kindergarten classrooms. The EPA was ordered by the U.S. Court of Appeals for the Ninth Circuit to revise their standards by June 2019 after several environmental organizations sued the agency in 2016 for failing to update the standards. The revised… Read more

Jun 26, 2019

U.S. EPA Not to Impose Stricter Ozone Controls on Upwind States

The U.S. EPA determined in December 2018 that it would not impose additional pollution control requirements on power plants in 20 upwind states whose emissions allegedly cause ozone nonattainment in downwind states in the northeast. Six eastern states led by New York are suing the EPA arguing it should have required stricter controls from upwind states to stop nitrogen ozides from blowing across state lines and preventing New York, Connecticut, Delaware, Maryland, Massachusetts, and New Jersey from meeting federal air quality limits for ozone causing pollutants. The EPA has countered that additional pollution controls on the upwind states would achieve… Read more

Jun 12, 2019

U.S. Supreme Court to Address Important CERCLA Issue

On June 10, 2019, the U.S. Supreme Court announced that it would review a Montana Supreme Court decision that has important implications for cleanup of sites under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). In Atlantic Richfield Co. v. Gregory A. Christian, et al., Atlantic Richfield Co. (Arco) is seeking reversal of a Montana Supreme Court decision that allows private residents to sue Arco for cleanup costs and “restoration damages” of EPA-approved remediation that Arco is performing on the residents’ properties under CERCLA. The cleanup relates to the Anaconda Smelter Superfund site. Arco has spent decades and… Read more

Jun 5, 2019

Federal Judge Blocks Obama Administration Wetlands, Waters Rule

The U.S. District Court for the Southern District of Texas ruled on May 28, 2019, that the Obama administration erred when it crafted the Waters of the U.S. (“WOTUS”) regulation. The court found that the final version of WOTUS rule deviated too far from a previous draft version which deprived the public of an opportunity to submit public comment on the final rule. The ruling makes final a preliminary injunction issued last year blocking implementation of the 2015 rule. The injunction applies to Texas, Lousiana, and Mississippi. It is unlikely that the procedural error noted by the District Court will… Read more

May 15, 2019

$2 Billion Verdict in Monsanto Roundup Case

On May 13, 2019, a California jury awarded over two billion dollars to a husband and wife who alleged that they each developed cancer as a result of decades of using Monsanto’s weed-killer Roundup. The Alameda County, California jury concluded that Roundup likely caused the plaintiffs’ non-Hodgkin’s lymphoma and awarded the couple $55 million in non-economic damages, $3.2 million in economic damages, and punitive damages of $2 billion against Monsanto. The total award was more than double what the plaintiffs’ attorney suggested in closing arguments. The case is the third case to be tried to a jury verdict involving Monsanto… Read more

May 8, 2019

Claims Against Caterpillar Can Proceed Despite “Mere Conclusory” Allegations in CERCLA Complaint

Claims against Caterpillar Global Mining LLC survived Caterpillar’s Motion to Dismiss on the ground that the allegations were merely conclusory in a CERCLA cost recovery claim before the U.S. District Court for the Southern District of Indiana. In its May 3 opinion, the Court stated that the information regarding who, what, when, and where, which would be required under a heightened pleading standard, isn’t required at the pleading stage in a Superfund action. The plaintiff in the case acquired farmland in Richmond, Indiana in 2012, which was part of a larger property that included manufacturing operations. Hazardous waste, including polychlorinated… Read more