Environmental Law Matters

In early August 2023, the U.S. Environmental Protection Agency (EPA) issued a proposed denial of Alabama’s permit program to manage coal combustion residuals (CCR) in landfills and surface impoundments within the state. The decision evidently came as a surprise to the Alabama Department of Environmental Management (ADEM), the environmental regulatory agency that intends to manage Alabama’s CCR permitting program, as ADEM had been communicating and working with EPA on CCR program efforts for several years prior to the announcement. In addition, other states that have ...

A bill amending the Alabama Solid Wastes and Recyclable Materials Management Act by specifying when local approval of solid waste disposal permit modifications is necessary has passed both houses of the Alabama Legislature and is now law. 

Under Act Number 2023-290, local governing body review and approval of permit modifications for landfills will be required only when the landfill seeks to:

1. Increase the service area.
2. Convert from an industrial or construction and demolition landfill into a municipal solid waste landfill, or convert from a construction and demolition landfill ...

This week a bill was introduced in the Alabama Legislature which would expand the state’s Brownfield Redevelopment and Voluntary Cleanup Program through the implementation of new features aimed to increase participation in the Program, thereby returning more brownfields to productive use and enhancing economic growth. Key features of the proposed amendments to the Alabama Land Recycling and Economic Redevelopment Act include the following.

Allowing Potentially Responsible Persons to be Entitled to Certain Liability Protections Through Voluntary Cleanup Program ...

On December 5, 2022, the U.S. EPA issued a memorandum entitled, Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs. The memorandum “provides EPA’s guidance to states and updates the April 28, 2022 guidance to EPA Regions for addressing PFAS discharges when they are authorized to administer the NPDES permitting program and/or pretreatment program.” The memorandum reaffirms EPA’s focus on its PFAS Strategic Roadmap commitments, recommending a number of steps permit writers can implement “to reduce the discharge ...

Per- and polyfluoroalkyl substances, or “PFAS,” as they have come to be known, are a category of widely-used and long-lasting chemicals found in many consumer, commercial, and industrial products. The human health and environmental risks of PFAS are not fully understood; however, some scientific studies suggest that exposure to high levels of certain PFAS may lead to adverse health effects. While many states, including Alabama, do not have numeric water quality criteria for PFAS, state environmental agencies are taking steps to address PFAS in the environment – ...

The U.S. Environmental Protection Agency (EPA) has announced that it will provide more efficient review of certain materials used in Electric Vehicle, Semi-conductor, and Clean Energy Sectors. EPA implements the New Chemicals Program pursuant to its authority under Section 5 of the Toxic Substances Control Act (TSCA). Under this Program, EPA assesses “new” chemical substances (i.e., those that are not on the TSCA inventory), and identifies conditions to be placed on their use before they are entered into commerce. Anyone who intends to manufacture or import a new chemical ...

On Tuesday, December 7, 2021, the U.S. Environmental Protection Agency and the Army Corps of Engineers published for public comment a proposed rule revising the definition of “Waters of the United States” (“WOTUS”).  The agencies indicate the proposal would “meet the objective of the Clean Water Act and ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.”

The proposed rule replaces the “interstate commerce” test ...

Per- and polyfluoroalkyl substances, or "PFAS" as they are commonly known, are a group of thousands of man-made chemicals that have been manufactured in the United States and around the globe for several decades.  These days, PFAS are a frequent topic of discussion for many environmental professionals, as affected clients make efforts to prepare themselves for seemingly inevitable regulation.  But the prep work that is involved depends on where the client is operating, as the type of and speed at which regulatory changes are occurring varies across the nation.

In her article ...

In late July, the Environment and Natural Resources Division (“ENRD”) of the Department of Justice released a memo setting forth the Division’s policy for handling enforcement of civil Clean Water Act matters when a State has previously instituted a civil penalty proceeding under an analogous state law arising from the same operative facts.  The policy reflects a cooperative federalism theme, which follows the current U.S. EPA’s commitment to work cooperatively with states and to acknowledge, respect, and promote the critical role they play in implementing the Federal ...

Three months after issuing its COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program temporary policy memorandum suspending enforcement of certain environmental requirements, the U.S. Environmental Protection Agency has announced it is supplementing the temporary policy to include a specific termination date.

The supplement, described as an Addendum on Termination, indicates EPA’s temporary enforcement policy will terminate on August 31, 2020.  As EPA’s Office of Enforcement and Compliance Assurance explains, EPA will not base an ...

In early 2020, the Alabama Environmental Management Commission promulgated rules establishing procedures by which the Department of Environmental Management will regulate land application of eligible non-hazardous by-product materials within the State.  The rules became effective April 13, 2020, and are intended to work in conjunction with the U.S. EPA’s Biosolids Program governing the use or disposal of sewage sludge.

The term “land application” is not defined in the ADEM rules, but, in general, it is the spreading, spraying, injection, or incorporation of ...

Apropos of the ongoing celebrations for the 50th anniversary of Earth Day, the U.S. Supreme Court today released its opinion in the Clean Water Act case of County of Maui v. Hawaii Wildlife Fund, et al.  Justice Breyer delivered the majority opinion, joined by Justices Roberts, Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justices Thomas and Gorsuch, as well as Justice Alito, filed dissenting opinions.

The Court’s analysis addresses the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a ...

In a much-anticipated memo dated March 26, 2020, the U.S. EPA shares “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.”  The memo, from Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine, outlines EPA’s temporary approach to enforcement discretion for covered non-compliance resulting from the COVID-19 pandemic.  The policy recognizes that the “consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze ...

The Alabama Department of Environmental Management can finally breathe a sigh of relief, as the Court of Appeals for the Eleventh Circuit issued an opinion today affirming the U.S. EPA’s January 11, 2017 decision not to commence proceedings to withdraw the State’s NPDES permitting program authority and ending nearly a decade of uncertainty for the agency.

The process began in January 2010, when several environmental groups filed a petition with EPA alleging twenty-six grounds for withdrawal of Alabama’s program authorization.  EPA issued an interim response to the ...

On April 15, 2019, the U.S. Environmental Protection Agency (“EPA”) released a much-anticipated Interpretative Statement on Releases of Pollutants from Point Sources to Groundwater.  Last February, EPA received public comments on whether the Agency should revise or clarify its position on whether National Pollutant Discharge Elimination System permits are required for releases of pollutants to groundwater.  Since then, both regulators and the regulated have been waiting to see how EPA would respond. EPA’s Statement concludes “releases of pollutants to groundwater ...

On February 19, 2019, the Supreme Court of the United States issued an order granting review of the Ninth Circuit’s decision in County of Maui v. Hawaii Wildlife Fund, setting the stage for a landmark decision on Clean Water Act jurisdiction. The particular issue under consideration is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. In January, the U.S. Solicitor General filed a brief – at the Court’s request – urging the Justices to decide the question ...

On January 3, 2019, the U.S. Solicitor General filed a brief urging the Supreme Court to grant certiorari in County of Maui v. Hawaii Wildlife Fund to decide the question of whether a "discharge of a pollutant occurs when a pollutant is released through a point source, travels through groundwater, and ultimately migrates to navigable waters."  The brief suggests review is warranted to resolve the issue conflicting with the Fourth, Sixth, and Ninth Circuits, as well as the "numerous district courts" that have confronted cases involving claims of unpermitted discharges to waters of the ...

On December 3, 2018, the Supreme Court of the United States took a rare step in specifying a deadline by which the U.S. Solicitor General may offer input in two certiorari petitions involving the scope of the Clean Water Act. According to scotusblog.com, the move could signal an intent "to ensure that the justices could if they decide to grant review, hear oral arguments and decide the cases by the end of the current term." In both cases, County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy Partners LP v. Upstate Forever, the petitioners seek review of Ninth and Fourth Circuit ...