On November 6, 2019, the U.S. Environmental Protection Agency (US EPA) proposed a new procedural rule titled “Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals” (the Proposal). The Proposal represents the first update to the Environmental Appeals Board (EAB) in 27 years. Specifically, the Proposal would impact the EAB’s … Continue Reading
As 2019 moves into its closing months, US EPA activity under the amended Toxic Substances Control Act (TSCA) remains front and center. As part of US EPA’s three-step process of prioritization, risk evaluation and risk management for existing chemicals, as we previously reported, EPA began in 2016 by identifying the first ten chemicals for risk … Continue Reading
On August 7, 2019, US EPA Administrator Andrew Wheeler signed the Agency’s newest proposal to amend the Clean Water Act (CWA) to streamline permitting of energy projects. Specifically, the proposed rule would amend the regulations concerning Section 401 of the CWA. It represents US EPA’s first comprehensive effort to promulgate federal rules governing the implementation … Continue Reading
On July 19, 2019, the D.C. Circuit issued its decision in Idaho Conservation League v. Wheeler, upholding US EPA’s decision not to issue financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The requirements, if adopted, would have cost the hardrock mining industry … Continue Reading
On July 11, 2019, US EPA announced its new policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work (the Policy). The Policy was communicated as a memorandum from Assistant Administrator Susan Parker Bodine to the regional administrators. To date, the Policy is US EPA’s most comprehensive statement … Continue Reading
Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress. In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance. On April 25, 2019, … Continue Reading
As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due … Continue Reading
New water supplies in the western United States are likely to come from a panoply of non-traditional sources, including storm water capture, waste water recycling, desalination, infrastructure efficiency improvements, and other conservation measures. One potential new water source for municipalities is contaminated groundwater requiring environmental remediation, that, but for its low quality, could be used … Continue Reading
Ohio has reversed course on its prior decision not to include the open waters of Lake Erie in its 2016 impaired waters listing following an April 11 ruling by Judge James G. Carr of the U.S. District Court for the Northern District of Ohio. The decision criticized the maneuvering of US EPA and Ohio EPA … Continue Reading
The United States Environmental Protection Agency (US EPA) has formally released “problem formulation” documents for the risk evaluations it is conducting on the “first ten” chemical substances under the amended Toxic Substances Control Act (TSCA). Formal notice of the problem formulation documents was published in the Federal Register on June 11, 2018. Comments on the … Continue Reading
US EPA announced on April 24, 2018 that EPA Administrator, Scott Pruitt, had signed a proposed rule to strengthen the science used in regulations issued by US EPA. The proposed rule, “Strengthening Transparency in Regulatory Science,” was published on April 30, 2018 and would require that – where scientific studies are pivotal to US EPA’s regulatory action … Continue Reading
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
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
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
On February 26, 2018, the US Environmental Protection Agency (US EPA) formally issued its proposed rule to charge new “user fees” under the amended Toxic Substances Control Act (TSCA). The amended TSCA authorizes US EPA to charge fees for a variety of activities under TSCA sections 4, 5 and 6, totaling up to 25% of … Continue Reading
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
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
On July 7, 2017, the D.C. Circuit Court of Appeals issued a decision striking down portions of US EPA’s Definition of Solid Waste (DSW) Rule, which defines when certain hazardous secondary materials (i.e. recyclable materials generated as the remainder of industrial processes) become “discarded” and thus subject to regulation as a solid waste. The Rule, … Continue Reading
A coalition of environmental and conservation groups have given US EPA notice of their intent to sue over the Agency’s failure to timely review Ohio’s and Michigan’s biennial impaired waters listings. Under §303(d)(2) of the Clean Water Act (CWA), US EPA is required to approve or disapprove a state’s proposed list of impaired waters not … Continue Reading
A common question that arises when performing environmental due diligence on commercial real estate is the degree to which the presence of asbestos-containing materials (ACMs) should be investigated. In the case of ACMs, “what you don’t know can hurt you” and, therefore, the old axiom of “less is more” does not apply. This is especially true regarding asbestos not only … Continue Reading
It has been one year since the Clean Power Plan was published in the Federal Register, and the oral arguments for the rule in the D.C. Circuit have been concluded for about a month now. In this relative “calm before the storm,” as we wait for the D.C. Circuit decision, the 2016 Presidential Election, and the … Continue Reading
The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading
On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations. “Congress has not delegated to the Department of Interior the authority to regulate … Continue Reading
In one of the most closely watched environmental and administrative law cases this term, the US Supreme Court ruled unanimously against the government on Tuesday, May 31, 2016, affirming the Eighth Circuit’s decision allowing federal courts to review the US Army Corps of Engineers’ jurisdictional determinations. Jurisdictional determinations are decisions wherein the Corps determines whether wetlands or dry … Continue Reading
