A Tilted Balance: Emerging Regulation of Nutrient Pollution in Ohio

Nutrient pollution has become a growing concern in the State of Ohio and elsewhere along the Great Lakes. In the summer of 2014, large algae blooms in Lake Erie generated toxins that contaminated the City of Toledo’s drinking water. In response, the City instructed 400,000 people not to drink or cook with tap water, prompting national media attention.

In this article, published in the Columbus Bar Lawyers Quarterly, Squire Patton Boggs attorney Rees Alexander evaluates Ohio’s attempts to regulate nutrient pollution from both point sources, such as industrial and sewer pipes, and nonpoint sources, such as runoff from fertilizer and manure used in agricultural operations. The article explains that while Ohio’s efforts with respect to point sources have helped reduce nutrient pollution, a growing body of data suggests that nonpoint sources are the primary cause of nutrient pollution. Therefore, Alexander criticizes a recent indication from Ohio EPA that it will introduce legislation to impose a strict 1.0 mg/l phosphorous limit for all municipal and industrial wastewater treatment systems. Ohio EPA’s legislation, Alexander explains, would undermine the efforts of stakeholders who favor a dynamic approach to nutrient regulation for point sources that accounts for whether the discharge would actually impact water quality in the receiving water body. Alexander concludes that it is unlikely Ohio will be able to achieve the State’s ambitious nutrient reductions goals by pursuing an unbalanced regulatory strategy that focuses largely on point sources.

Flint Michigan Lead-Tainted Water Class Action Allowed to Continue

By Brent Owen on April 17, 2018 Posted in Clean Water Act, Environmental Litigation, Toxic & Mass Tort, Water Quality

The US Supreme Court has denied review of a July 2017 Sixth Circuit ruling that revived two federal class action lawsuits seeking redress for plaintiffs alleging injury as a result of the lead-tainted water crises in Flint, Michigan. In addition to ensuring that the Flint, Michigan water crises remains active in the national conversation, the Supreme Court’s decision leaving in place the Sixth Circuit’s reasoning paves the way for drinking water claims that might otherwise be preempted by the Safe Water Drinking Act (SWDA). Practically, the decision may result in additional monetary relief for Flint residents. Continue Reading

California Threatens Lawsuit Against US EPA as Pruitt Threatens to Roll Back Emissions Standards

By Jonathan King on April 16, 2018 Posted in Air Quality, Climate Change & Sustainability, Rulemaking & Policy Development

In 2012, California, the Obama Administration, and major US automakers agreed (2012 Agreement) to nearly double fuel efficiency fleet-wide by 2025, raising the average fuel economy of new cars and light trucks to more than 50 MPG, or roughly 36 MPG in real-world driving. As part of the 2012 Agreement, a midterm review was scheduled to take place for April 2018 to determine the attainability of the final requirements. However, just prior to Obama leaving office in January 2017, US EPA announced it had completed its midterm review with no changes to the 2012 Agreement based on a record supported by a 2015 National Academies study and on the federal agency’s finding that the 2025 standards could be met with both technical and economic feasibility.

In February 2017, the Alliance of Automobile Manufacturers (Alliance), representing the majority of the automakers who agreed to the higher standards in 2012, wrote a letter requesting US EPA to withdraw its premature midterm determination. In this letter, the Alliance argued that “EPA and NHTSA in 2012 took the unprecedented step of setting joint greenhouse gas and fuel economy standards over a decade in advance for MY 2022-2025 vehicles,” and that US EPA’s commitment to a robust midterm evaluation was abrogated when it issued its final determination early, and without coordinating development of the standards with NHTSA. In March of 2017, US EPA and NHTSA granted the Alliance’s request and announced their intention to reopen midterm review and reconsider the Obama Administration EPA’s final determination that new standards were unnecessary. In response, California’s Air Resources Board (CARB) announced it would nonetheless move forward with the greenhouse gas emissions standards set forth in the 2012 Agreement. Continue Reading

March 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law and Procedure

By Squire Patton Boggs on April 5, 2018 Posted in Chemicals & Products, Environmental Protection, Health & Safety, Product Safety, Rulemaking & Policy Development

Electronic News

We are pleased to share with you the latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law and Procedure”, a monthly newsletter that provides bite-size updates on EU and UK law, procedure and policy. This month, we summarize nearly 30 developments of interest within the UK and EU environmental, safety and health arena, including:

The UK’s first contested prosecution under the Bribery Act 2010 s.7
The Department for Business, Energy and Industrial Strategy (BEIS) fining a company for failure to ensure a product was made from legally harvested timber
The Product Safety Office publishing a Code of Practice on product safety recalls and corrective actions
An airport baggage and cargo handler being fined £502,000 for two accidents at Luton Airport in 2015
The Court of Appeal reducing a £160,000 fine – issued for breach of Work at Height Regulations 2005 – by £50,000 to reflect mitigation

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.

New Product Recall Code of Practice in the UK

By Laura Clare on April 4, 2018 Posted in Health & Safety, Product Safety

The new Office for Product Safety & Standards (OPSS) has collaborated with the BSI, to introduce the first ever government-backed Code of Practice for product safety recalls – PAS7100.

This is the first major undertaking of the OPSS, which was set up in January 2018. The development of the code results from recommendations made by the Working Group on Product Recalls and Safety, in order to improve the UK’s product safety regime.

The Code of Practice is intended to provide clarification for producers and distributors as to the steps that should be taken when faced with a product safety issue under the General Product Safety Regulations 2005.

New Office for Product Safety and Standards: Further UK Regulation

By Laura Clare on March 27, 2018 Posted in Health & Safety, Product Safety

In light of the fire that destroyed Grenfell Tower in West London in 2017, and apparent issues with the safety of white goods in particular, we commented upon the lack of guidance on product recalls Closed Doors in UK law, and the existing government proposals to improve and overhaul various areas of product regulation. On 21 January 2018, the UK Government announced the creation of a new Office for Product Safety and Standards (OPSS) to enhance the current product safety system in the UK. This is considered to be a direct response to the Grenfell Tower tragedy.

US Supreme Court Declines to Reconsider Key Agency Deference Standard

By Alex Arensberg on March 26, 2018 Posted in Administrative Procedures Act, Environmental Litigation, Rulemaking & Policy Development

On March 19, 2018, the US Supreme Court denied a petition for writ of certiorari in Garco Construction, Inc. v. Speer. In doing so, the Court declined an opportunity to revisit an important and controversial administrative deference standard, known as Auer or Seminole Rock deference, which requires courts to give “controlling weight” to an agency’s interpretation of its own regulations. The deference afforded to an agency’s interpretation of its own regulations is often a critical issue in environmental litigation. The Court’s decision not to reconsider the deference standard at this time means that agencies will continue to have great latitude to construe their own regulations.

However, while the Court denied the petition, Justice Thomas issued a dissent, joined by Justice Gorsuch, criticizing the Auer and Seminole Rock deference standard. Justice Thomas wrote that “this would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates,” and he described the doctrine as “constitutionally suspect” and “on its last gasp.” Continue Reading

D.C. Circuit Further Clarifies the RCRA Definition of Solid Waste Rule Ruling

By Vincent Atriano and Gary Pasheilich on March 20, 2018 Posted in CERCLA/RCRA, Environmental Litigation, Solid & Hazardous Waste

On March 6, 2018, the D.C. Circuit Court of Appeals modified its 2017 ruling in American Petroleum Institute v. EPA, No. 09-1038, concerning US EPA’s Definition of Solid Waste (DSW) Rule under the Resource Conservation and Recovery Act (RCRA), which defines when hazardous recyclable materials are excluded from regulation as hazardous waste. The end result of this modified ruling is to relax the standards for legitimate (as opposed to “sham”) recycling and to extend the DSW Rule’s exclusions to spent petroleum refinery catalysts (K171 and K172 listed hazardous wastes).
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Making Brexit Work for the Chemical Industry Sector

By Squire Patton Boggs on March 19, 2018 Posted in Brexit, Chemicals & Products

A strong chemical manufacturing sector is at the heart of every successful economy. In the UK, the sector contributes £18 billion a year to the economy, employs 500,000 people and has £50 billion worth of exports – the largest of any manufacturing sector. Most importantly, 60% of these exports go to the EU and 75% of the UK’s chemical imports come from the EU.

The terms of the UK’s exit from the EU are, therefore, critical for the future success of the sector. A recent report, produced by the Chemical Industries Association in partnership with Squire Patton Boggs, examines some of the critical issues, challenges and opportunities for the sector as the UK progresses its Brexit negotiations.

Amid Pushback, US EPA’s Reversal on “Once In Always In” Policy Opens Door to Reduced Clean Air Act Obligations

By John Lazzaretti and Lianne Mantione on March 15, 2018 Posted in Air Quality, Rulemaking & Policy Development

On January 25, 2018, Bill Wehrum, the new Assistant Administrator of US EPA’s Office of Air and Radiation, issued a memorandum to all Regional Air Division Directors rescinding US EPA’s historic “Once In Always In” (OIAI) policy for major sources under US EPA’s National Emission Standards for Hazardous Air Pollutants (NESHAP) program. Under the “Once In Always In” (OIAI) policy, major sources subject to Maximum Achievable Control Technology (MACT) standards were prohibited from reclassification that would allow them to escape major source MACT standards. Effectively, once in, always in. US EPA’s new policy retracts that position. As Administrator Scott Pruitt testified before the Senate Environment and Public Works Committee, this updated guidance presents an opportunity to reward major emission sources who have invested the time and money to significantly reduce hazardous air pollutants and that now fall below the major source threshold.

US EPA anticipates publishing a document in the Federal Register to take comment on adding regulatory text that will reflect US EPA’s current legal interpretation; a move that, if successful, will help solidify and address the bounds of this new policy. Of course, we expect that legal challenges to both the updated OIAI guidance and any subsequent rulemaking will occur. US EPA’s proposal is already receiving push back from a group of 16 Senate Democrats who, in a letter to Administrator Pruitt on March 14th, are urging US EPA to reinstate its prior OIAI policy, at least until US EPA has performed a thorough analysis of the policy change and received public comment.