As previously reported in SGR’s environmental and sustainability newsletter, the U.S. EPA and the U.S. Corps of Engineers jointly published a final clean water rule on June 29, 2015, intended to clarify the jurisdictional limits of federal water for purposes of the Clean Water Act. The rule, which takes effect on August 25, but which is considered final on July 13 for purposes of judicial review, is in danger of being unfunded by Congress when they return to session following the July 4 recess. The House is set to vote on the fiscal year 2016 spending bill for the Interior… Read more
Tag: Phillip Hoover
WOTUS Rule Challenges
As previously reported in the Smith, Gambrell & Russell Environmental & Sustainability Newsletter, on June 29, 2015, the Environmental Protection Agency and the U.S. Army Corps of Engineers released their final rule defining the “waters of the United States” (WOTUS) and the jurisdictional scope of the Clean Water Act. The rule is in response to the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, 547 U.S. 715 (2006), and will go into effect on August 28, 2015. The rule is expected to have significant impact on a number of industries, including farming, energy transmission, transportation, construction, and agriculture. On… Read more
Vapor Intrusion Guidance Issued by EPA
On June 11, EPA released two long-awaited guidance documents on addressing the potential for vapor intrusion at contaminated sites. Vapor intrusion is the potential for vapors from groundwater contamination to enter occupied buildings. One guidance document, EPA’s “Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources,” applies to all sites being investigated under cleanup programs such as Superfund, RCRA corrective action, and state-led Superfund sites. It applies to contaminants other than petroleum, to mixed petroleum and other contaminant sites, and to petroleum contamination sites other than underground storage tanks (USTs). It can be found here…. Read more
Supreme Court Overturns D.C. Circuit Opinion on EPA MATS Regulations
On Monday, June 29, 2015, the U.S. Supreme Court issued a 5-4 opinion in Michigan v. EPA, holding that the EPA must consider costs to the regulated industry in determining whether limiting mercury in power plant emissions is “appropriate and necessary”, in the words of the Clean Air Act. The decision reverses a ruling of the D.C. Circuit Court upholding EPA’s mercury regulation and sends the litigation back to the Circuit Court for further proceedings. The specific regulation at issue is known as MATS (mercury and air toxics standards) and requires power plants to comply with emission limits on mercury… Read more
New EPA Rule Requires 36 States To Revise Implementation Plans Disallowing Affirmative Defense To Clean Air Violations
In a final rule issued on May 22, the EPA has given 36 states until November 22, 2016 to revise their state implementation plans (“SIPs”) to remove provisions allowing a defense to enforcement actions under the Clean Air Act for violations that occur during start up, shut down and other emergency situations. The rule, which amends 40 CFR part 52, requires the 36 affected states to do away with affirmative defenses for excess air admissions during equipment malfunctions, and during the start up and shut down operations when air emissions tend to be higher than during normal operations. In the… Read more
EPA Developing Best Practices To Report Industrial Chemical Discharges
Plans to develop best management practices for Clean Water Act permit writers and pretreatment coordinators are underway as The Environmental Protection Agency responds to a September 2014 report by the EPA Inspector General that criticized the agency for being ineffective at regulating discharges of hazardous chemicals to and from wastewater treatment plants. The agency also plans to clarify reporting guidelines under 40 C.F.R. 403.12(j) and 403.12(p) that spell out reporting procedures for industrial users that discharge chemicals to treatment plants. Updates to a variety of pretreatment guidance documents including a 1994 manual for industrial users to conduct inspection and sampling… Read more
Nanomaterials: Comments on Proposed Data Collection Rule Due July 6
EPA released a significantly revised proposed data collection rule under Toxic Substances Control Act (TSCA) Section 8(a) for nanomaterials on April 6 and is accepting comments on the proposed rule until July 6. The rule would establish a one-time reporting requirement of data on nanomaterials meeting the specifications of the rule, due 6 months after issuance of the final rule. If a company intends to manufacture a substance that would have been subject to the reporting requirement but does not begin manufacture until after the effective date of the rule, it would have to submit its data at least 135… Read more
Liability Allocation Under CERCLA Within Court’s Discretion
A Federal Appeals Court in the Ninth Circuit has unanimously ruled on April 2, that Federal Trial Courts are not required to employ a specific formula when allocating costs between private parties for clean-up expenses incurred under CERCLA. The Court stated that District Courts have discretion in determining the most equitable method of accounting for settlements between private parties in a contribution action, and stated that this approach is consistent with both federal common law and the intent of CERCLA. Under the Ruling, District Courts can apply equitable factors in deciding whether to subtract from a Plaintiff’s potential recovery the… Read more
Federal Case Law Impacts Superfund Cost Recovery
The dividing line between Superfund cost recovery and contribution actions under sections 107(a) and 113(f) of CERCLA, respectively, have long been complicated and unclear. Potentially responsible parties (PRPs) typically prefer to proceed under § 107 due to its more favorable statute of limitations and joint and several liability standard, but often plead both sections alternatively when seeking reimbursement and response costs. Several recent court decisions provide additional clarity as to which section is appropriate given the procedural status of the claim. In United States v. Atl. Research Corp., 551 U.S. 128 (2007), the Supreme Court held that the availability of… Read more
First Steps Toward Reauthorization of Brownfield Program
Both republican and democratic senators from the Senate Environment and Public Works Committee have met to discuss potential paths forward for a multi-year reauthorization of the Brownfield Program. During interviews conducted in February and March, committee members indicated that the program is popular and likely to receive bipartisan support. The original act created under the Brownfield Act of 2002, assisted states and local communities to clean up abandoned, idle or underutilized sites where contamination did not present a serious enough threat to human health or the environment to be considered for listing on CERCLA’s National Priorities List. The program, which… Read more