What Happened to US EPA’s New Source Performance Standards and Emission Guidelines for Municipal Solid Waste Landfills?

In 2016, US EPA finalized two rules designed to reduce methane and non-methane organic compound emissions from landfills.  These rules were adopted as part of President Obama’s Climate Action Plan: Strategy to Reduce Methane Emissions.  US EPA issued final New Source Performance Standards (NSPS) to reduce emissions caused by landfill gas from new, modified and reconstructed municipal solid waste (MSW) landfills, as well as Final Updates to Emissions Guidelines designed to reduce emissions from existing MSW landfills, on August 29, 2016.  These combined rules updated the standards originally issued by US EPA in 1996.

On May 31, 2017, US EPA, under the Trump Administration, issued a stay of both rules until August 29, 2017 so that it could review an administrative petition filed on October 27, 2016 by the National Waste & Recycling Association, Solid Waste Association of North America, Republic Services, Inc., Waste Management Inc. and Waste Management Disposal Services of Pennsylvania, Inc.  The petition sought reconsideration of the combined rules and an administrative stay under CAA section 307(d)(7)(B).  Pursuant to this authority, US EPA stayed the effectiveness of these rules for 90 days so that it can address the objections raised in the administrative petition.

A recent decision by the US Court of Appeals for the District of Columbia, however, casts doubt on US EPA’s authority to stay the effectiveness of final rules under CAA section 307(d)(7)(B).  In Clean Air Council et al. v. Pruitt et al., case number 17-1145, the court granted Environmental Petitioners’ motion to vacate US EPA’s stay of final rules that regulate methane emissions from new natural gas and oil drilling sites.  US EPA, as a consequence of this decision, must enforce these rules as finalized until such time as they are formally amended or revoked.  Although US EPA’s stay of the final NSPS and emission guidelines remains in place, it has been challenged in Natural Resources Defense Council, et. al. v. Pruitt, et. al., case number 17-1157.  The case, which was filed on June 15, 2017, is still pending before the in the United States Court of Appeals for the District of Columbia. Continue Reading

US Lawmakers Target the Endangered Species Act While Advocates Continue to Sue to Shape the Act’s Implementation

Since President Nixon signed into law the Endangered Species Act (ESA) in 1973, the ESA has directed the identification and protection of endangered and threatened species in the United States. While President Obama remarked that his Administration had “seen more victories under the Endangered Species Act than any previous administration,” the Obama Administration generally applied the ESA in a fashion designed to avoid significant legal and political battles. By contrast, advocates and politicians on both sides have brought the ESA front and center during the first few months of the Trump Administration.

In June, for example, the General Land Office of the State of Texas (TXGLO), a state agency charged with land and natural resource stewardship in Texas, sued the Department of the Interior and the US Fish & Wildlife Service (FWS) in an attempt to remove a bird, the golden-cheeked warbler, from the endangered species list. TXGLO pointed to a 2015 Texas A&M study concluding that the warbler’s population had increased to 19 times more than had been assumed when the bird was listed as endangered. In a corresponding press release, TXGLO Commissioner George P. Bush stated: “The restoration of the golden-cheeked warbler population is a success story worth celebrating by removing it from the endangered list and restoring the rights of Texas landowners to effectively manage our own properties.”  As discussed below, the ESA is receiving significant political and legal attention.  This raises the question of whether TXGLO will pursue a legal decision mandating the delisting of the golden-cheeked warbler or whether will it take advantage of a friendly political administration and utilize the “sue and settle” strategy to begin the delisting process. Continue Reading

US Dam Infrastructure Earns a “D” in American Society of Civil Engineers Report Card

In 2017, the American Society of Civil Engineers (ASCE) completed its quadrennial infrastructure report card, giving American infrastructure a “D +” overall, and a slightly lower “D” for the “Dams” category. With 90,580 existing water impoundments in the US, there is need and opportunity to undertake a variety of activities at all levels of government and across multiple sectors in order to develop a systematic approach to dam safety, operations and maintenance, water supply, hydropower production, and ecosystem health on the nation’s rivers and streams. Continue Reading

Squire Patton Boggs Helps Secure a Victory for the State of Colorado at the US Supreme Court

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill.  New Mexico asserted claims under the intricate provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Resource Conservation and Recovery Act of 1976 (RCRA). New Mexico also sought analogous relief against Colorado under federal interstate common law.

Assisting the State of Colorado, a Squire Patton Boggs team, led by Carolyn McIntosh and Peter Gould, along with Alex Arensberg, Wes Reed, and Brent Owen, successfully argued that the US Supreme Court should not entertain New Mexico’s novel lawsuit. As explained in Colorado’s briefing, New Mexico’s RCRA claim failed because a CERCLA response action had been initiated to address the relevant hazardous substance release. New Mexico’s CERCLA claim failed, Colorado argued, for a number of reasons, including that once a site is under investigation under CERCLA authority, several of New Mexico’s claims are barred because they would interfere with the CERCLA investigation and remedy decision making. Colorado additionally argued that Congress displaced New Mexico’s putative federal common law claims through its enactment of comprehensive environmental statutes, most importantly the Clean Water Act, but also CERCLA and RCRA.  Finally, Colorado’s briefing also explained that Colorado should not be held liable for its regulatory activities in remediating and managing abandoned mines.

The Gold King Mine spill occurred in August 2015 after a contractor for the US Environmental Protection Agency (EPA) breached a collapsed mine portal at the Gold King Mine in the mountains near Silverton, Colorado. The breach released roughly three million gallons of acidic mine water into the Animas River.  The release received national attention because, for a time, it turned portions of the Animas River yellow from the oxidation of dissolved iron in the escaped water.

US EPA studies performed following the release concluded that water quality returned to pre-event conditions within two weeks after the Gold King Mine plume passed. Additionally, there were no reported fish kills in the affected rivers, and post release surveys by several organizations found that other aquatic life do not appear to have suffered harmful short-term effects from the Gold King Mine plume.  US EPA and Colorado continue to monitor the potential impacts from the Gold King Mine spill.

Remediation efforts at Gold King are ongoing. Last year, US EPA—which has taken responsibility for the spill—listed Colorado’s Bonita Peak Mining District (including the Gold King Mine) as a Superfund site.  In a statement, US EPA Regional Administrator explained the benefit of that listing:

Listing the Bonita Peak Mining District on the National Priorities List is an important step that enables EPA to secure the necessary resources to investigate and address contamination concerns of San Juan and La Plata Counties, as well as other downstream communities in New Mexico, Utah, and the Navajo Nation.

Colorado’s victory at the US Supreme Court protects Congress’s carefully constructed statutory scheme for the effective management and remediation of water pollution across the country. It also protects Colorado’s sovereign ability to remediate abandoned mines.

Squire Patton Boggs will continue to monitor the Gold King Mine spill and provide updates.

Traditional SEPs and Mitigation Projects May Still Pass Muster under US DOJ’s New Settlement Policy

US Attorney General Jeff Sessions recently issued a new policy barring payments to non-governmental third parties as part of most civil and criminal settlements.  The memorandum does not detail how the US Department of Justice (DOJ) will implement the policy, leaving much to departmental interpretation.  The language is broad enough to have significant impacts on environmental settlements.  For those parties seeking agreement on traditional Supplemental Environmental Projects (SEPs) or mitigation projects, however, there is reason to support the DOJ’s continued acceptance of these projects even under the new policy. Continue Reading

OSHA to Hold Stakeholder Meetings on Voluntary Protection Programs

The US Occupational Safety and Health Administration (OSHA) recently announced its plan to hold a stakeholder meeting in Washington, D.C. on July 17, 2017, “to discuss the future direction of the agency’s Voluntary Protection Programs (VPP),” the agency’s initiative to prevent workplace injuries and illnesses through cooperation, collaboration, and targeted hazard prevention and control.  A second stakeholder meeting is also tentatively scheduled to occur in New Orleans on August 28, 2017, but it has not yet been confirmed. Continue Reading

US EPA Approves Ohio’s Lake Erie Impairment Decision After Lawsuits Filed

US EPA recently approved Ohio’s 2016 list of impaired waters not meeting water quality goals which did not list the open waters of the Western Basin of Lake Erie as impaired.

A coalition of environmental and conservation groups had recently filed lawsuits to force US EPA action on Ohio’s proposed listing in both the D.C. District Court and Northern District of Ohio District Court.  As previously reported here, the coalition sought to compel US EPA to perform its non-discretionary duty to take action on Ohio’s proposed list of impaired waters, which was submitted back in October of 2016.  The lawsuits argued that a decision by US EPA to disapprove the proposed listing would have required development of a Total Maximum Daily Load (TMDL) implementation plan to address nutrient issues driving Lake Erie’s harmful algal blooms (HABs):

If the U.S. EPA were to disapprove the omission of Lake Erie from OEPA’s 303(d) list, U.S. EPA would have a nondiscretionary duty, not later than thirty days after the date of such disapproval, to identify Lake Erie as impaired and establish a TMDL for the lake as U.S. EPA determines necessary to implement the water quality standards applicable to Lake Erie, and upon such identification and establishment, the State of Ohio must incorporate them into its continuing planning process.  This might lead to the restoration of the quality of the water in Lake Erie…

National Wildlife Federation, et al. v. U.S. EPA, Case 17-cv-00759, Cmplt. at ¶25 (D.C. Dist.).

However, as further outlined in a detailed decision document that accompanied the Agency’s approval decision, US EPA “deferred to the State’s judgment” and made note of Ohio EPA’s ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie, including its work with US EPA on TMDLs for certain impaired waterbodies within the Lake Erie basin.

US EPA’s approval decision dims the immediate prospects for a federally-led, multi-state TMDL for Lake Erie.  But legal challenges such as these are likely to persist, especially with another algal bloom season approaching.

The Impact of New and Developing Technologies on UK Environmental, Safety and Health Compliance

Technology can offer new business opportunities and efficiencies to businesses. However, it can also present new and on-going challenges to the regulation and control of health, safety and environmental issues (and ultimately the potential liability of any business exploiting new technology). One of the ‘key points’ of the Health and Safety Executive Strategy 2016 was that “we all need to horizon scan and ‘design-in’ effective risk management of new or emerging technologies and business models.” More recently, trade press have worked to identify just some of the prominent emerging technologies, including nano-materials and collaborative robots.

To play its part in such horizon scanning and development of effective risk management strategies, we will be hosting in our Birmingham office on Wednesday 14 June 2017, the sixth annual UK Environmental, Safety and Health Conference. We are delighted to welcome a host of expert external speakers to explore these issues and help guide businesses through potential pitfalls. Speakers include:

  • Alistair Protheroe, Seeing Machines (discussing Early Fatigue Detection Systems and Driver Behaviour – a carrot or a stick?)
  • Anthony Bochon, Squire Patton Boggs Brussels office (big risks in a small world: the regulatory challenges of nanotechnology)
  • Chris Ryall, Manufacturing Technology Centre & Gareth Evans, Health and Safety Laboratory (Additive Manufacturing – Opportunities, Risks and Safeguards)
  • Dr Alison Lawson, Forresters (dealing with the Intellectual Property Challenges of New Environmental Technologies)
  • Karl Simons, Thames Water (Eye in the Sky – Technology Influencing Business)
  • Louise Ward, British Safety Council (the Psychological Impact of Technology)
  • Robert Brooks, Omron (Robotics and Mitigation of Risks on the Production Line)
  • Sarah Foster, Comply Direct (Producer Responsibility: Opportunities and Challenges in the Age of the Circular Economy)

There will be no charge for this conference and there is still time to sign up to attend here.

US Congress Creates New Subcommittee to Focus on Challenges and Opportunities for Local Governments

Local governments have a new forum on Capitol Hill focusing on the many challenges and opportunities they face: the Intergovernmental Affairs Subcommittee in the US House of Representatives. The new Subcommittee was created in January at the start of the new Congress and is led by Chairman Gary J. Palmer (AL-6) and Ranking Member Val Butler Demings (FL-10). The Subcommittee has broad responsibility over “the relationship between the federal government and states and municipalities, including unfunded mandates, federal regulations, grants, and programs.”

Chairman Palmer is especially interested in addressing how environmental laws and regulations can be a “roadblock to states and local communities and infrastructure projects.” For example, testimony by one local official at the Subcommittee’s first hearing indicated that federal environmental regulations can double the cost of building a road per mile, increasing the cost from $80,000 to $160,000. The Chairman said at that hearing that he hopes his new Subcommittee will help “find ways to continue protecting our environment while simultaneously encouraging infrastructure development and economic growth” and also “play a role in beginning to streamline the regulatory process and devolve control back the States” and their local governments. Continue Reading

State Attorneys General Join Fight Over “1-in 2-out” Trump Executive Order

White House at NightAttorneys General from 14 states—led by West Virginia and Wisconsin—filed an amicus brief on April 17 in support of the “1-in 2-out” Executive Order (EO) issued by President Trump.  This EO, which we have covered previously, requires that:

  • For every new regulation promulgated, two regulations are eliminated;
  • Any new incremental costs associated with new regulations shall be offset by the elimination of existing costs associated with at least two prior regulations; and
  • For 2017, “the total incremental cost of all new regulations, including repealed regulations . . . shall be no greater than zero” unless otherwise required by law or consistent with advice from the Director of the Office of Management and Budget (OMB).

Plaintiffs, Public Citizen, Inc. (a nonprofit consumer advocacy organization), NRDC and the Communication Workers of America (AFL CIO), filed suit in the U.S. District Court for the District of Columbia challenging the “1-in 2-out” EO. They primarily attack the requirement that new rules can be promulgated only if the net impact does not impose greater costs. They argue that, by narrowly focusing on cost without considering benefits, the EO necessarily violates the Administrative Procedure Act and the statutes from which the agencies derive rulemaking authority.

Continue Reading