Environmental and Sustainability Law Archives

May 6, 2020

DOJ Eliminates SEPs in the Settlement of EPA Enforcement Actions

On March 12, 2020, the head of the Environment & Natural Resources Division of the U.S. Department of Justice (“DOJ”) announced that the DOJ will no longer allow the use of supplemental environmental projects (“SEPs”) to offset the payment of civil penalties in the settlement of enforcement actions brought by the DOJ on behalf of the U.S. EPA. SEPs have long been utilized in the settlement of governmental enforcement actions—specifically, settling defendants have agreed to fund projects that provide environmental and community benefits to areas and natural resources impacted by the alleged violation of environmental laws in exchange for a… Read more

Apr 24, 2020

U.S. Supreme Court Issues Decision Regarding How the Federal Clean Water Act Applies to Groundwater Discharges

On April 23, 2020, the U.S. Supreme Court issued a decision in County of Maui v. Hawaii Wildlife Fund, a closely watched case regarding whether the federal Clean Water Act (CWA) applies to discharges of pollutants to groundwater which reach surface waters. In County of Maui, the plaintiff environmental organizations brought a citizen suit alleging that the defendant-county was in violation of the CWA in regard to the county’s decades-old practice of injecting partially treated wastewater into groundwater wells. The wells consistently leaked and tracer dye testing confirmed that over 60% percent of the wastewater injected into the wells wound… Read more

Apr 22, 2020

Federal District Court Issues Ruling With Potential Significant Implications for Linear and Infrastructure Projects

On April 15, 2020, a judge with the U.S. District Court for the District of Montana issued a decision in Northern Plains Resource Council v. U.S. Army Corps of Engineers, which potentially has significant implications for linear construction and infrastructure projects and permitting for crossings of waters and wetlands throughout the country. The case involves the plaintiff environmental groups’ challenge to the well-known and controversial Keystone XL oil pipeline. In the April 15th decision, the court vacated the Army Corps’ Nationwide Permit 12 (NWP 12), which is utilized to provide streamlined approval under § 404 of the federal Clean Water… Read more

Mar 18, 2020

EPA Authorizes Nationwide Telecommuting for EPA Employees

Consistent with OMB guidance, the EPA has authorized telecommuting and voluntary unscheduled leave for all of its eligible workers across the country in response to the corona virus pandemic. While the EPA acknowledges that it does not have any confirmed cases of employees at the agency’s headquarters with COVID-19, the decision to rollout telecommuting across the nation is consistent with guidance issued late Sunday from the White House. The EPA also stated that leaders at each office and region are holding daily calls and commuting with staff about region specific information regarding the virus. For more information, contact Phillip Hoover.

Mar 11, 2020

Additional $5M in Brownfield Funding

The Small Business Liability Relief and Brownfields Revitalization Act authorizes the EPA to make additional funds available in any year based on the demand for the funding. Due to high demand, the EPA announced last Friday that it is offering an additional $5,000,000 to recipients of its Brownfield revolving loan fund agreements in fiscal year 2020. Federal Brownfield funding contributes to the redevelopment of the underuse properties that may be contaminated by providing loans for site investigation and cleanup. For more information, please contact Phillip Hoover.

Mar 4, 2020

EPA’s Science Advisory Board Criticizes Rules Defining WOTUS

EPA’s Science Advisory Board (“SAB”) is reiterating its criticism of the EPA’s new Waters of the United States (“WOTUS”) rule claiming that the new rule fails to incorporate current science in its definition. The SAB notes in its commentary that the revised definition decreases protection for our nation’s waters, without providing a scientific basis in support of its restriction. The SAB criticism points out that the EPA and the Corps. finalized the new WOTUS after the SAB had finalized its commentary, but before it had been transmitted to either agency. For more information, contact Andy Thompson or Phillip Hoover.

Feb 26, 2020

U.S. Challenges Plastic Waste Trade Limits

The Organization for Economic Cooperation (“OEC”), which represents the world’s 36 richest countries, has proposed a policy which would impose limits on trade of plastic recyclables. The policy, which is slated to take effect next year, is intended to restrict the volume of plastic recyclable materials that can be shipped from richer countries to third world countries where more lax regulation of the waste industry could result in releases of the plastic materials into the environment. The United States favors a position of maintaining the status quo which allows for relatively free trade in plastic scrap which it argues will boost… Read more

Feb 19, 2020

EPA Considers “Legacy Use” Options as Appeal Windows Narrows

The EPA announced that it will not seek an en banc rehearing of an appellate court ruling declaring that the EPA must consider Legacy uses of chemicals in its TSCA evaluations of the potential hazards of the chemicals. The decision stems from a Ninth Circuit ruling last November where a challenge to the agency’s final rule on how it will conduct risk evaluations under TSCA was upheld. The Appellate court held that the EPA’s decision to preclude Legacy uses and associated disposal from its risk evaluation was unlawful. The EPA has until mid-February to decide if it will petition the… Read more

Feb 12, 2020

EPA’s New Water Rule to Face Major Challenges in Court

The EPA’s new rule which was unveiled on January 23 to replace the Obama administration’s Waters of the United States rule is expected to face major challenges in court as the Trump rule contains very little scientific justification for the change. The rule redefines which bodies of water are covered by federal antipollution laws, and is far narrower than the Obama administration’s version. The new policy excludes isolated wetlands and ephemeral streams that only flow after heavy rainfall. The 2015 Waters of the United States rule came with volumes of scientific justification, and the Trump administration will have to demonstrate… Read more

Feb 5, 2020

EPA Adds 160 PFAS for Toxics Release Reporting

One hundred sixty (160) polyfluoroalkyls (“PFAS”) have been added to the list of chemicals requiring reporting under the Toxics Release Inventory (“TRI”) by the EPA. EPA gave official notice on December 31 to industry reporters that they must begin tracking and collecting data on PFAS starting on January 1, 2020. Reporting for those chemicals now on the list will be due to the EPA by July 1, 2021. The requirement mandating immediate additions to the TRI comes even as the EPA is continuing with its advanced Notice of Proposed Rulemaking released last December announcing possible PFAS additions to the TRI. … Read more