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 ...
On January 23, 2020, the Environmental Protection Agency and the United States Army Corps of Engineers (the “Agencies”) issued the “Navigable Waters Protection Rule” as the latest attempt to define the phrase “waters of the United States” (“WOTUS”) in the Clean Water Act. The rule, also referred to as the “Replacement Rule,” will be effective sixty (60) days after its publication in the Federal Register. The Replacement Rule is the second step of a two-step process identified by the Agencies to address the Obama administration’s much litigated 2015 Rule, or ...
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 ...
The Senate narrowly confirmed Andrew Wheeler as Administrator of the Environmental Protection Agency on Thursday, February 28, 2019, by a vote of 52-47. No Democrats supported the nomination and one Republican also opposed. (The Hill). Interestingly, Senator Joe Manchin (D-W.Va.) voted against Wheeler after having been the only Democrat to support his earlier nomination as Deputy Administrator. Manchin explained that Wheeler has not demonstrated a desire or will to make progress in standards for drinking water and has worked to roll back certain clean air standards, both of ...
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 ...
EPA enforcement actions as reflected by the amount of assessed civil penalties have dropped substantially during the first two years of the Trump Administration. (Washington Post, January 24). According to an analysis reported there, EPA's civil fines averaged more than $500 million a year when adjusted for inflation during the twenty years prior to the beginning of the Trump Administration. The total for 2018 was approximately 85% below that amount. This continues but expands a trend initiated in 2017 when penalty amounts apparently dropped by half (Reuters, 2/15/2018
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 27, EPA proposed to revise the cost finding associated with the Mercury and Air Toxics Standards (MATS) along with the risk and technology review required by the Clean Air Act. (EPA Announcement). The action is taken as a result of a 2015 Supreme Court decision, Michigan v. EPA. The case involved EPA's interpretation of a section of the Clean Air Act (42 U.S.C. §7412(n)(1)(A)), which requires the agency to regulate power plants when "appropriate and necessary," The Court held that the agency had interpreted the provision unreasonably when it deemed cost irrelevant to 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 ...