Environmental and Sustainability Law Archives

Feb 21, 2017

EPA Sued by Homebuilders over Joint Liability for Stormwater Issues

In a lawsuit filed on February 6 in the U.S. Court of Appeals for the District of Columbia, developers working on construction sites with multiple contractors have alleged that they should not be liable when another contractor causes a violation of the project’s NPDES stormwater permit. Historically, multiple operators at a single site are required to obtain individual permits but share responsibility for compliance for the entire project. The suit argues that the joint and liability language of the construction permit makes all contractors responsible for each other’s permit violations even when the contractors have no control over the operations… Read more

Feb 6, 2017

Trump’s Presidential Memo Encourages the Development of a Permit Streamlining Action Plan

In a January 24th Presidential Memorandum, President Trump urged the Commerce Department to develop a “permitting streamlining action plan” recommending policy and procedural changes that will boost domestic manufacturing. The manufacturing sector frequently cites regulatory requirements, including delays in the processing of necessary permits, as barriers to investment in domestic manufacturing projects. It is anticipated that the Trump memo could cover a number of environmental permits such as Title V operating permits, new source review permits, as well as national pollutant discharge elimination system permits. The policy contains no details; however, industry trade organizations are optimistic that the memo will… Read more

Feb 1, 2017

EPA Denies State Request to Expand Ozone Transport Regions

A petition, which was filed by several “downwind” states to expand the region of states required to take additional steps to control emissions of ozone-forming pollutants, is likely to be denied by the EPA. Authority to impose additional pollution control measures on stationary sources of ozone, precursor pollutants comes from the Cross-State Rule which states that emissions of ozone precursors can be more stringently regulated in states where emissions are causing a downwind state to address its own emissions of ozone precursor pollutants. The petition seeks to add the following states to the Ozone Transport Region: Illinois, Indiana, Kentucky, Michigan,… Read more

Jan 25, 2017

Water Transfer Rule Upheld

In a split 2-1 decision, the 2nd Circuit Court of Appeals affirmed EPA’s 2008 “Water Transfer Rule” which exempted water management facilities from obtaining Clean Water Act National Pollutant Discharge Elimination System permits. The Water Transfer Rule was an outgrowth of the 2004 Supreme Court decision in South Florida Water Management District v. Miccosukee Tribe, and is important for flood control projects, water supply particularly in arid areas, dams and hydropower generation, and related activities involving the necessary movement of water. Several environmental organizations and governments challenged the rule in the District Court for the Southern District of New York… Read more

Jan 18, 2017

U.S. EPA has determined Clean Air Act permit granted to Georgia Cellulosic Biomass Plant to be Inadequate

The Environmental Protection Agency (“EPA”) has concluded that the Clean Air Act (“Act”) operating permit for the Piedmont Green Power facility issued by the Georgia EPD in 2015 is inadequate for failure to include sufficient monitoring, record keeping, and reporting requirements to ensure that biomass burned in the plant’s boiler qualifies as clean, cellulosic biomass. Title V operating permits are issued by state and local permitting authorities, which must submit the permits to the EPA for review and approval. The operating permit includes annual hazardous air pollution remnants that the EPA determined are legally and practically unenforceable. Based on this… Read more

Jan 11, 2017

Possible Change to EPA Toxic Rules for Large Boilers

On December 23, 2016, the U.S. Court of Appeals for the District of Columbia ruled that Environmental Protection Agency’s (“EPA”) toxic pollution requirements for large industrial boilers were flawed, siding with arguments made by environmental groups. The decision left the existing rule in place while ordering the EPA to make the necessary corrections in the boiler, Maximum Achievable Control Technology Standards for Boilers, commonly known as Boiler MACT. Industrial groups have expressed optimism that the incoming Trump administration will take the opportunity to revise how the EPA sets toxic pollutant standards across the board. For example, the Trump administration’s EPA… Read more

Jan 3, 2017

FERC Addresses Right of Solar Energy Qualified Facilities to Sell Power to Electric Utilities

Solar Panels - Solar Tariffs - Solar Energy

In a December 15 opinion, the Federal Energy Regulatory Commission (FERC) upheld the right of small power producers such as solar power facilities to sell power to their local utilities under the requirements of the Public Utilities Regulatory Policies Act of 1978 (PURPA). In a Declaratory Opinion, FERC ruled that a utility cannot require that a facilities study or interconnection agreement be obtained before the utility is required to purchase the power from the small power facility under a legally enforceable obligation. FERC regulations require that a utility purchase any energy and capacity made available by a Qualified Facility (QF). … Read more

Jan 2, 2017

NESHAP Revisions Regarding Generally Available Control Technology

On December 20, 2016, EPA Administrator Gina McCarthy signed a final rule that revised “National Emission Standards for Radon Emissions from Operating Mill Tailings,” Subpart W of 40 CFR part 61. The revised standard requires the use of generally available control technology (GACT) to limit radon emissions from uranium tailings impoundments built after 1989. Specific control technologies would be required at conventional tailings impoundments, evaporation ponds, and heap leach piles. The revised standard also contains record-keeping and construction requirements. Existing radon emissions standards and monitoring requirements for impoundments built before 1989 remain in force. The rule becomes effective 60 days… Read more

Dec 19, 2016

EPA Raises Defense of Power Plant Carbon Rule in Federal Court

The US EPA has argued that carbon dioxide limits for newly constructed power plants fall squarely within the EPA’s Clean Air Act authority, thereby making arguments in a Federal Court which President-Elect Donald Trump’s Administrator nominee has already rejected. The incoming Trump Administration will be tasked with defending the new source performance standards for new and modified power plants which the President-Elect has vowed to repeal. The case is set for argument before the U.S. Court of Appeals for the District of Columbia on April 17th unless the Administration chooses to seek an abeyance of the lawsuit or possibly a… Read more

Dec 14, 2016

EPA Proposes Ban of TCE for Dry Cleaning Uses

Relying on its new authority under the Toxic Substances Control Act (TSCA), which was amended in summer 2016, EPA announced a proposed rule on December 7, 2016, which would ban trichloroethylene (TCE) from use as a degreaser and spot removal agent in dry-cleaning operations. The proposed rule marks the first exercise of EPA’s new authority to restrict the use of an existing chemical under TSCA. The proposed rule is based on a 2014 EPA risk assessment which found significant health risks for workers and consumers relating to the use of TCE in dry cleaning. The proposed rule would prohibit the… Read more