On July 25, 2016, pursuant to the authority of Section 231(a) of the Clean Air Act (“CAA”) the U.S. EPA declared that emissions of greenhouse gas from aircraft endanger human health and the environment. The endangerment finding, which can be found at RIN 2060-AS31 opens the door for the EPA to regulate greenhouse gas emissions from aircraft. According to the EPA’s top air official, Janet McCabe, “the EPA has already set effective greenhouse gas standards for cars and trucks, and any future aircraft engine standards will also provide important climate and public health benefits.” According to the agency, 89% of… Read more
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New Threshold Requirements for Methane Emissions from Landfills
On July 15, 2016, the U.S. EPA released its new source performance standard (RIN2060-AM08) for landfills built or modified after July 17, 2014, for methane emissions. The emissions guidelines, which are designed to curb the greenhouse gas methane, lowered the emissions threshold from 50 metric tons of methane to 34 metric tons. This is the same standard set by the EPA applicable to new landfills. New and updated control technologies will need to be installed within 30 months at each landfill meeting the 34 metric tons emission threshold. For more information, please contact Phillip Hoover.
U.S. EPA Prepares to Defend White House Clean Power Plan
Within hours of the U.S. Supreme Court’s decision halting the Carbon Dioxide Standards implementation under the Clean Air Act (the “Act”), the U.S. EPA began to prepare their public defense of the plan. EPA Administrator Gina McCarthy said in a February e-mail to all staff, the day after the Supreme Court issued its stay, that “the rule fits squarely within the four corners of the Clean Air Act – a statute we have been successfully implementing for 45 years.” Other internal e-mails from senior EPA officials have expressed surprise at the U.S. Supreme Court’s decision, but have quickly emphasized that… Read more
The DOJ states that the EPA Assistance to States with Clean Power Plan Implementation Complies with Law
The U.S. EPA’s (“EPA”) ongoing assistance to states implementing the Clean Power Plan under the new EPA rule has been reviewed by the DOJ for compliance with the U.S. Supreme Court’s decision to stay the rule. Under the stay issued by the U.S. Supreme Court, the EPA is enjoined from implementing the Clean Power Plan. The DOJ has determined that states are not enjoined by the Supreme Court’s decision, and, therefore voluntary request from individual states for assistance in implementation. Clean Power Plans do not rule afoul of the U.S. Supreme Court’s stay on implementing the rule. The EPA’s Clean… Read more
New EPA Proposal Would Remove CERCLA, RCRA Exemptions from Air Emissions Rules
On May 12, 2016, the EPA proposed a rule (RIN 2060-AN36) which would remove the exemption for site cleanup activities under the hazardous waste statutes from the emissions standards for hazardous air pollutants under the Clean Air Act. The proposed rule would amend the National Emission Standards for Hazardous Air Pollutants (“NESHAP”), Site Remediation Rule, to include activities taken under CERCLA and RCRA, as well as RCRA corrective actions and orders. Under the amended rule, the NESHAP permitting requirements would apply to site activities that involve the removal and treatment of hazardous substances from soil or groundwater, the removal of… Read more
High Court Rules in Favor of Landowners Over Army Corps of Engineers Objections
In an 8-0 decision, the United States Supreme Court held that designating a property as a Water of the United States was a final agency action. Landowners now have the ability to challenge designations of Waters of the United States before penalty actions are commenced. This decision gives landowners greater flexibility in fighting an erroneous designation. A landowner can now file a challenge to a wetlands designation without the same risk regarding fines. For more information, please contact Phillip Hoover.
Contribution Claims Under CERCLA Limited where Party Seeking Contribution has Settled with Federal Government
A federal court in the Eastern District of Wisconsin has held that a party entering into an agreement with the federal government to settle a claim for liability under the Superfund law may only pursue a contribution claim for payments that were made under the agreement. Under the Superfund law, defendants face joint and several liability, while contribution claims are limited to a defendant’s equitable share of the cost of the remediation at the site. The plaintiff in this case, Appvion, Inc., filed a claim against the U.S. Army Corp of Engineers stating that its dredging activity exacerbated the contamination… Read more
States Challenge EPA’s Clean Power Plan
More than two dozen states, along with industry, utility and other groups, have joined a lawsuit challenging the EPA’s Clean Power Plan. The challengers argue that Section 111(d) of the Clean Air Act does not authorize the EPA to implement the Clean Power Plan as currently written. The plaintiffs assert that the EPA’s rule would fundamentally transform the domestic energy sector, and that the Clean Air Act does not authorize the agency to make such sweeping changes. According to statements from Plaintiffs, the case is not about the wisdom of any particular policy; rather, it is about whether the EPA… Read more
EPA Issues Guidance on Remediation at Mining Sites
The U.S. EPA has issued guidance for the safe removal and remedial actions associated with hard rock mining. The action by the U.S. EPA was taken in response to the 3 million gallon spill at the Gold King Mine in Colorado which was triggered by the US EPA’s remedial activities at the site. The U.S. EPA has stated that the guidance document’s purpose is to assist its regional offices in physical year 2016 to plan for clean-up activities at hard rock and mineral processing sites which have fluid hazards such as the Gold King Mine. The 12-page guidance document states… Read more
Former EPA Administrators Defend Clean Power Plan
The U.S. EPA contends that shifting electricity generation away from coal-fired utilities as required by the Clean Power Plan (the “CPP”) constitutes a permissible system of emission reduction under the Clean Air Act (the “Act”). Two former EPA administrators have expressed support for this interpretation, asserting that the Act was broadly worded to reflect Congress’s intent to allow EPA the flexibility to address emerging air pollution problems without having to seek revisions to the Act itself. The current EPA administration has determined that the Act’s requirement that EPA determine the “best system” for cutting carbon dioxide emissions is broad enough… Read more