Archives

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 … Continue Reading

Flint Michigan Lead-Tainted Water Class Action Allowed to Continue

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 … Continue Reading

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

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 … Continue Reading

US Supreme Court Declines to Reconsider Key Agency Deference Standard

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 … Continue Reading

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

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 … Continue Reading

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

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) … Continue Reading

Navigating the “No Affiliation” Requirement to Bona Fide Prospective Purchaser CERCLA Liability Protection

­An important consideration for purchasers of US commercial property is establishing Bona Fide Prospective Purchaser (“BFPP”) liability protection to mitigate the risk of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.   Because the current owner of a property where a release of hazardous substances has occurred … Continue Reading

Warning: Only 6 Months Left Before New Prop 65 Regulations Become Operative on August 30, 2018

As of today’s date, businesses have only 6 months to comply with the newly-amended Clear and Reasonable Warnings regulations in California’s Proposition 65 (Prop 65), which take effect on August 30, 2018. We posted a 1-year reminder here, which discusses the history of Prop 65, the new requirements in the regulations, and the potential increase in … Continue Reading

The Future of the Clean Power Plan as US EPA’s Proposed Repeal Looms

On October 16, 2017, US EPA, under Administrator Scott Pruitt, proposed the repeal of the Clean Power Plan (CPP), and the Agency is accepting comments on the repeal until April 26, 2018. Following a review of the statute’s language, surrounding policy, and legislative history, US EPA proposed to “return to a reading of CAA section 111(a)(1) … as … Continue Reading

US EPA’s Renewable Fuel Standard Volumes for 2018 Unsatisfactory to Many

On November 30, 2017, US EPA issued the final volume requirements and associated percentage standards for its renewable fuel standards (RFS) program for calendar year 2018, as well as the biomass-based diesel volume requirement for 2019. The annual volumes establish quotas for how much renewable fuel must be added to gasoline and diesel in order to, … Continue Reading

Legal Challenges Ahead After President Trump Reduces Utah National Monuments

On December 4, 2017, President Trump issued two Presidential Proclamations reducing the size of Bears Ears and Grand Staircase-Escalante National Monuments by more than 800,000 acres and 1.1 million acres, respectively.  Bears Ears and Grand Staircase-Escalante National Monuments had been previously created by Presidents Obama and Clinton pursuant to the Antiquities Act of 1906.  The announcement by … Continue Reading

New US EPA Memorandum Suggests a Hand’s-Off Approach to NSR Applicability Determinations

On December 7, 2017, US EPA Administrator Scott Pruitt issued a memorandum to all Regional Administrators to offer guidance regarding the Agency’s interpretation of New Source Review (NSR) preconstruction permitting requirements in response to recent decisions from the Sixth Circuit in EPA v. DTE Energy Co.  Highlighting the lack of unanimity among the individual Sixth … Continue Reading

Update: DOE Approves an Extension for FERC’s Response to the Proposed Grid Resiliency Pricing Rule

The Federal Energy Regulatory Commission (FERC) now has until January 10, 2018 to act on the Grid Resiliency Pricing Rule proposal. As we previously reported, FERC had been facing a December 11, 2017 deadline set out in the Department of Energy (DOE) proposal, which calls for full recovery of costs for “fuel-secure” generating units in … Continue Reading

As Deadline Approaches, FERC Chairman Hints at Interim Solution to Keep Coal and Nuclear Plants Afloat

As the deadline imposed by the U.S. Department of Energy (DOE) approaches for the Federal Energy Regulatory Commission (FERC) to determine whether to exercise its regulatory authority over the electricity market in a manner designed to throw a life line to coal and nuclear power generators, the FERC commissioners have not hesitated to publicly make … Continue Reading

Deadline Approaching for Chemical Manufacturers and Importers to Submit Chemical Substance Notifications to US EPA Under the TSCA Inventory Reset Rule

The February 7, 2018 deadline is rapidly approaching for manufacturers and importers of chemical substances in the US to submit their notifications to US EPA as required by the Inventory Reset Rule issued by US EPA pursuant to the amended Toxic Substances Control Act (TSCA). The Inventory Reset Rule requires every chemical manufacturer and importer … Continue Reading

MSHA Officially Delays Effective Date of Workplace Examination Rule Until June 2018

The Mine Safety and Health Administration (MSHA) officially delayed the effective date of the controversial “Examinations of Working Places in Metal and Nonmetal Mines” final rule by a full eight months to June 2, 2018 and temporarily reinstated the previous versions of the workplace examination rules – deemed 30 C.F.R. § 56.18002T and 30 C.F.R. § 57.18002T –  that were in … Continue Reading

US EPA’s Superfund Task Force Recommendations May Expedite Cleanup and Reuse Process for Contaminated Sites

Shortly after being confirmed as the new US EPA Administrator, Scott Pruitt appointed a Superfund Task Force to review the approximately 1,300 Superfund sites in the United States and make recommendations on how to improve and restructure the cleanup process. Administrator Pruitt observed that “many of these sites have been listed as Superfund sites for decades, some … Continue Reading

MSHA Workplace Examination Rule Delayed Once Again

On January 23, 2017, the Mine Safety and Health Administration (MSHA) published its long-awaited final rule regarding modified workplace examination requirements in non-coal mines.  The rule was originally scheduled to go into effect in May of this year, but implementation was delayed twice until October 2, 2017. Over the past several months, operators have been … Continue Reading

D.C. Circuit Holds US EPA Cannot Stay Implementation of Methane Rule Issued by Obama Administration

On July 3, 2017, the US Court of Appeals for the D.C. Circuit vacated US EPA’s decision to stay implementation of portions of a final rule concerning methane and other greenhouse gases.  In Clean Air Council v. Pruitt, a three-judge panel held that US EPA lacked authority under the Clean Air Act to stay the … Continue Reading

Warning: Only One Year Left Before New Prop 65 Regulations Become Operative On August 30, 2018

As of today’s date, businesses have just one more year to comply with the newly-amended Clear and Reasonable Warnings regulations from California’s Proposition 65 (“Prop 65”), which take effect on August 30, 2018.  Businesses should consider the Clear and Reasonable Warning compliance requirements and guidance outlined below now to be prepared for this deadline and minimize the risk of … Continue Reading

US EPA and Army Corps of Engineers Propose Re-Codification of Definition of “Waters of the United States” Pre-Existing Rules

On July 27, 2017, US EPA and the US Army Corps of Engineers published a Proposed Rule regarding the “Definition of ‘Waters of the United States; – Recodification of Pre-Existing Rules.” The Proposed Rule is a “first step in a comprehensive two-step process intended to review and revise” the definition of “waters of the United States” … Continue Reading
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