With an election year comes speculation about who will win the Presidency and whether the new Administration could reverse some of the more controversial programs of the Obama Administration, including those being pursued by the EPA. Should that happen, a decision last summer by the Ninth Circuit Court of Appeals, en banc, in Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517, July 29, 2015, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/29/11-35517.pdf, could provide guidelines for evaluating such reversals. The case involved a Bush Administration effort to reverse the Clinton Administration’s “Roadless Rule”, promulgated in 2001, just days before the change in administration. In… Read more
Tag: Steve O’Day
Proposed Pharmaceutical Rule Receives Concerns, Some Praise
The comment period on EPA’s proposed Management Standards for Hazardous Waste Pharmaceuticals closed on December 24. Comments on the proposed rule raised several concerns and lauded some of its provisions. The principal item criticized was the rule’s classification of pharmaceuticals in the “reverse distribution” process as waste. Healthcare facilities and retailers send unused or unsold pharmaceuticals to a central location, and receive credit from the manufacturer. Pharmaceuticals received at the location that are determined to be waste are then disposed in a manner compliant with the Resource Conservation and Recovery Act (RCRA). Comments on the proposed rule took the position… Read more
Eighth Circuit Reverses Summary Judgment Finding of CERCLA Arranger Liability
On December 10, the Eighth Circuit Court of Appeals, in a 2-1 decision, reversed a trial court’s summary judgment finding that Dico, Inc. had arranger liability under CERCLA for selling buildings known to contain PCB-contaminated insulation. United States v. Dico, Inc., et al, No. 14-2762 (8th Cir. 2015). The Court found that under the U.S. Supreme Court opinion in Burlington Northern and Santa Fe Railway Co. v. U.S., 129 S. Ct. 1870 (2009), the determination of intent to arrange for disposal of a hazardous substance is fact-specific, and that because there was some evidence that the buildings had some commercial… Read more
Air Toxics Rule Remains in Force While EPA Completes Cost Consideration
In a significant victory to EPA, environmental groups and clean energy companies, the D.C. Circuit Court of Appeals on December 15 remanded EPA’s Maximum Achievable Control Technology (MACT) rule for air toxics to the agency without vacating it. The remand keeps the rule in force while EPA finishes the cost analysis mandated by the U.S. Supreme Court in Michigan v. EPA (No. 14-46, June 29, 2015). Although the D.C. Circuit’s remand order noted that EPA is “on track” to complete its cost analysis by April 15, 2016, the order did not set a deadline for completion. As a result of… Read more
Workplace Violations Become Environmental Crimes
The U.S. Department of Justice (DOJ) announced on December 17, in a memorandum from Deputy Attorney General Sally Quillian Yates, that DOJ is transferring responsibility for the prosecution of many workplace violations to the Environmental Crimes Section of its Environment and Natural Resources Division. The stated purpose of the transfer of responsibility is to encourage utilizing Title 18, the federal criminal code, to prosecute environmental offenses arising out of worker safety incidents, in order to enhance penalties and increase deterrence. The Environmental Crimes Section can utilize prosecutions under such statutes as the Clean Air Act, Resource Conservation & Recovery Act,… Read more
Atlanta Announces Plan to Install Solar Installations on 28 City Buildings
Atlanta Mayor Kasim Reed announced at a press conference last week, the City of Atlanta’s plan to construct solar installations on 28 city buildings. This project will be made possible using financing authorized by HB 57, the Solar Power Free-Market Financing Act of 2015, enacted by the Georgia General Assembly earlier this year. Click HERE to watch Mayor Reed’s press conference. SGR’s Steve O’Day was a principal drafter and negotiator of the legislation. Click HERE to read more about HB 57.
Millennials Will Be Key Drivers of Sustainability in Small and Medium Businesses
Our client, Cox Enterprises, plays an active role in sustainability and conservation. From time to time we feature clients and their impact on the community and environment. Cox Enterprises released the results of its second annual Cox Conserves Sustainability Survey, which showcases that Millennials will lead the way for small and medium businesses in future conversations and efforts around conservation, energy efficiency, and environmental stewardship. The survey, commissioned by Cox Enterprises, is a national study that examines sustainability opportunities and challenges for small and medium-sized businesses (SMBs). The top finding from the 2015 survey is that Millennials have a huge… Read more
Fertilizer Manufacturers Challenge EPA Air Toxics Rule
In October, the Fertilizer Institute and a coalition of fertilizer manufacturers led by PCS Phosphate Company, Inc. filed separate challenges in the U.S. Court of Appeals for the D.C. Circuit, seeking to stay and invalidate EPA’s final rule for Phosphoric Acid Manufacturing and Phosphate Fertilizer Production Risk and Technology Review and Standards of Performance for Phosphate Processing, under the Clean Air Act. The October Petitions claim that EPA imposed new requirements to continuously monitor the liquid and gas influent flow rates for low-energy scrubbers and demonstrate continuous compliance with a minimum influent liquid-to-gas ratio, effective immediately upon publication of the… Read more
U.S. Wind Projects Triple in 2015
In 2015, the United States added about 3,600 megawatts of wind power capacity in the first nine months. This addition is almost triple the amount from a year earlier and is attributed to private sector businesses and local governments moving to lineup their own supplies of electricity. The growth was driven largely by private companies who are now joining utilities which have traditionally been the largest developers of wind energy projects. Amazon, Hewlett Packard and the City of Washington D.C. all signed contracts in the third quarter of 2015 to purchase wind power. In addition, Microsoft and Wal-Mart have announced… Read more
Sixth Circuit Court of Appeals Stays the Waters of the United States Rule
On October 9, the Sixth Circuit Court of Appeals stayed the U.S. Environmental Protection Agency/Corps of Engineers Waters of the United States Rule. That rule reportedly would expand Clean Water Act permitting, enforcement, testing and other requirements to a new group of ditches; buffers to rivers, streams, and wetlands; floodplains, and other areas. The Sixth Circuit held that the group challenging the rule – which included a number of state and local governments including Georgia, Florida, Tennessee, Mississippi, and Alabama – has a “substantial possibility” of prevailing on the merits, specifically regarding two new buffer thresholds added to the rule just… Read more