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 ...
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 ...
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 ...
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 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 ...
The Trump Administration announced a long-awaited proposal to roll back the Obama-era Clean Power Plan late last month. (Chicago Tribune). The action had been promised by the President and his appointees at EPA, who pursued it despite apparent ironies.
The proposed change was supported by a lengthy analysis prepared by EPA. (Regulatory Impact Analysis). Interestingly, the analysis concedes that the rollback will result in an increase in respiratory illnesses and premature deaths associated with easing the air pollution limits the Clean Power Plan would impose. (N.Y. Times
Irony abounds as the new Acting Administrator at EPA last Tuesday announced historic progress under the Clean Air Act even while the Administration works to roll back a number of Clean Air Act rules. On July 31, Acting Administrator Andrew Wheeler announced the release of a trends report entitled "Our Nation's Air," which summarizes air quality status and trends through the end of 2017. (Trends Report). The Report reflects on significant improvements in air quality since 1970. Overviews can be found here - (The Hill and here -- (USAToday).
Indeed, EPA's current webpage continues to ...
EPA Administrator Scott Pruitt has announced an effort to assess the potential health risks posed by a class of chemicals known as per-and polyfluoroalkyl substances (PFAS) that have been found in significant concentrations in the Nation's water supply. (EPA News Release: Summit Addresses PFAS). EPA already has health advisories for the presence of two particular chemicals in the PFAS family, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). (Drinking Water Health Advisories). Both PFOA and PFOS have generally been phased out or discontinued in commercial ...
Through a combination of memoranda and a recently proposed rulemaking, EPA Administrator Scott Pruitt is moving to affect longstanding and fundamental components of EPA programs. The merits (or lack thereof) may be lost as the actions are viewed from a perspective that the Agency is becoming increasingly politicized.
Through the use of a series of guidance memoranda recently released, EPA is revamping its rules for regulating air pollution. (The Hill, April 18, 2018). We reported on two of the memos in the blog on February 6. Those relate to the change in New Source Review policy ...
The Tennessee Department of Environment and Conservation ("TDEC") is soliciting comments on its new Antidegradation Guidance Document. The document, dated July 19, 2016, was made public January 5, 2016. TDEC is requesting comments by February 17, 2016. The Guidance Document was prepared by a Massachusetts company, Industrial Economics, Incorporated.
The Guidance Document is not developed or promulgated by the Board of Water Quality, Oil and Gas ("Board"), which is the entity charged with establishing rules governing water quality standards. The Board promulgated the ...
A recent article in The New York Times titled: Perils of Climate Change Could Swamp Coast Real Estate, indicates that rising seas and storm-related flooding in Florida appear to be driven by climate change and may be having direct impacts on the coastal real estate market (NYT Coastal Real Estate). Acknowledging that the incoming Trump administration has given new life to doubts about climate change, the article notes some actual changes in coastal areas due to sea levels and the impact of storms on local flooding not for the fact the conditions have occurred, but for the impact of the ...
The EPA's publication of a coal ash rule on April 17, 2015, did little to resolve the debate about the proper management of the material (EPA Coal Ash Page). Members of Congress have continued to push for legislation which would change significant parts of the rule, and EPA is now being criticized by the U.S. Commission on Civil Rights for not providing sufficient protection to minority communities potentially affected by the issue.
Members of Congress have, for several years, attempted to regulate coal ash by statute even as EPA was proceeding with the very protracted process of ...
Alabama has joined several other states in a petition filed with the U.S. Court of Appeals for the D.C. Circuit seeking to challenge the Environmental Protection Agency's final rule regulating emissions standards for certain oil and gas operations. (AG's Press Release). This challenge is apparently intended not only to address concerns about the rule for new and expanded projects, but also the potential that the rule will be extended to cover existing oil and gas operations. The challenge is led by West Virginia, and a copy of the Petition as filed with the D.C. Circuit can be found at ...
President Obama signed a major reform of the Nation's chemical safety standards on Wednesday, June 22. The legislation amended the 1976 Toxic Substances Control Act, providing the first substantive changes in the 40-year old law. (The Hill: Obama Signs Chemical Safety Overhaul).
The amendments significantly change the authorities of the Environmental Protection Agency to evaluate chemicals and provide protection to the public. The goal is to provide more extensive and functional oversight of the chemical industry, but in a way that provides certainty to chemical ...
Certain regulated entities that operate under Clean Air Act permits are being reminded that those permits do not necessarily cover air emissions associated with the management of hazardous wastes regulated by the federal Resource Conservation and Recovery Act (RCRA) and various State counterpart statutes. RCRA regulations governing hazardous waste management include certain requirements intended to prevent fugitive emissions of hazardous air pollutants, and these can operate separate from or in addition to requirements imposed by a facility's air permit.
An EPA national ...
On February 9, 2016, the United States Supreme Court dealt the Obama administration a setback when it temporarily blocked the Obama administration's efforts to regulate emissions from coal-fired power plants in its attempt to combat global warming. In a 5-4 opinion, with the Court's four liberal members dissenting, the Court granted a request by 29 states, along with dozens of corporations and industry groups, to temporarily halt an Environmental Protection Agency ("EPA") regulation[1] before the matter was fully considered by a federal appeals court. The EPA issued the ...
The third global summit on climate change has begun its meetings in Paris. Unlike the two previous summits, in Kyoto (1997) and Copenhagen (2009), there is optimism that an agreement under the auspices of the United Nations might be reached. (Paris Deal Important First Step).
This optimism apparently has its origin, in substantial part, based on an agreement between the United States and China, the two largest carbon pollution emitters in the world. Yet, while the President may have made inroads to persuading China that emissions reductions are merited, and he has also put his own ...
The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the controversial EPA/Corps of Engineers Clean Water Rule which was effective August 28, 2015. Some 30 states, industry and environmental groups had petitions pending in a number of circuit courts and all were consolidated in the Sixth Circuit. In what appears to be an interesting ruling, the three judge panel essentially expressed a desire to have the rule fully litigated before enforcing it. According to the Court:
A stay temporarily silences the whirlwind of confusion that springs from uncertainty about ...
Legal challenges filed almost immediately after President Obama announced the Clean Power Rule may be premature. That is what attorneys for EPA told the U.S. Court of Appeals for the District of Columbia Circuit recently in response to an action brought by West Virginia and several other states. The fundamental issue according to EPA attorneys is that a challenge is not ripe until the regulation is published in the Federal Register, and that may not occur for several weeks. (The Hill). The particular issue raised by the petitioners is an effort to stay the effect of the Rule while the ...
On August 3, 2015, President Obama announced the finalization of the long-awaited Clean Power Plan, a policy primarily intended to further the commitment to combatting global warming. The Plan focuses on the electric power generating sector of the nation's economy, which is responsible for approximately 31% of U.S. greenhouse gas emissions (primarily carbon dioxide, fluorinated gases, and nitrous oxide). The Plan intends to reduce greenhouse gas emissions by 2030 to levels below those generated in 2005. A fact sheet provided by U.S. EPA to accompany the President's ...
Today, the State of Tennessee joined in one of the many lawsuits filed by States challenging the EPA and Corps of Engineers Final Rule that defines of Waters of the United States under the federal Clean Water Act. The federal agencies stated in their Final Rule that they had actually narrowed the definition but most agricultural and industry groups believe the Final Rule will do the opposite. Tennessee joined the lawsuit already filed in the United States District Court of Ohio by the States of Ohio and Michigan. Tennessee's foray into the litigation marks what is believed to be the 30th
On Tuesday, May 26, 2015, EPA issued a long-awaited rule defining "Waters of the United States." Elsewhere, on EPA's Clean Water Rule webpage, there are a number of fact sheets and information intended to explain and support the rule as proposed. EPA apparently found this scope of detail and explanation necessary due to the significant opposition to the rule. Even before publication, the rule had generated a great deal of opposition. The proposed definition has been viewed by a number of groups as effecting a broad expansion of federal authority over water-bearing bodies that had ...
On December 10, 2014, the EPA administrator published its latest version on a rule revising recycling related provisions under the definition of solid waste rule (DSW rule). See 40 CFR Parts 260 and 261, Docket No. EPA-HQ-RCRA-2010-0742 (Dec. 10, 2014). The revisions were made to help alleviate concerns regarding disproportionate health and environmental risks suffered by low income communities buttressing local recycling facilities. These new revisions are predicted to make it increasingly difficult for facilities who purport to be recycling to illegally dispose of ...
Fracking received much attention and debate in the fourth quarter. Fracking is the process of injecting large amounts of water, sand and chemicals into the ground at high pressures in order to release oil and natural gas into underground rock formations. On December 17, 2014, New York Governor Andrew Cuomo announced his administration's plan to ban fracking due to health concerns. His decision follows a presentation by New York state health commissioner finding "significant public health risks" linked to fracking. See Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New ...
December 18, 2014, marked the release of the U.S. Environmental Protection Agency's (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014 Annual Environmental Enforcement Results (Dec. 18, 2014). According to the EPA, its enforcement actions in 2014 required businesses across the country to invest more than $9.7 billion in regulatory compliance and equipment. Additionally, EPA collected a total of $163 million in combined federal administrative, civil judicial penalties, and criminal ...
EPA's current estimate of the completion time for a draft of its study of the risks posed by hydraulic fracturing ("fracking") to drinking water is now projected by the agency to be developed in early 2015. This is based on comments in a letter originating from EPA's Region 8 office stating that the study on the risks posed by fracking to drinking water won't reach draft final form until "early 2015". The study was undertaken at the direction of Congress in 2009 when Congress requested EPA to conduct scientific research to examine the relationship between hydraulic fracturing in drinking ...
Late last month, President Obama addressed the United Nations Climate Summit and just a few days ahead of that, EPA announced that it has extended the comment period on the Clean Power Plant proposed rule to December 1, 2014. The proposed rule has been a lightning rod for the climate change controversy in the United States as it focuses on the effects of existing coal-fired power plants. It has also served to draw attention to efforts to move toward renewable sources of power and possibilities and pitfalls there. The proposed rule and related actions proposed by the Obama Administration ...
On Monday, June 22, the U.S. Supreme Court issued a much anticipated decision in Utility Air Regulatory Group v. Environmental Protection Agency (slip opinion) where it affirmed EPA's authority to impose limits for greenhouse gas (GHG) emissions by major emissions sources that are otherwise required to have a Clean Air Act permit for conventional pollutants. At the same time, the Court rejected the Agency's assertion that it has the authority to impose GHG emission limits on facilities independent of any other obligation those facilities may have to obtain permits. Thus, EPA (and ...
In March, EPA published a new Final Rule that revised a 2009 Final Rule addressing stormwater discharges from its Construction and Development (C&D) point source category. The March revision withdrew the numeric turbidity effluent limitation and monitoring requirement and made certain other changes and clarifications. (Federal Register: March 6, 2014 Federal Register) The revised rule results from litigation filed by a number of entities, Wisconsin Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and 10-1876 (7th Cir.), and specifically from a settlement ...
In a news release dated March 25th 2014, EPA and the Army Corps outlined a new proposed joint rule to clarify the scope and definition of the "waters of the United States" under the Clean Water Act in an attempt to address issues raised in two separate Supreme Court cases decided in 2001 and 2006. The proposed rule clarifies what upstream waters, including natural and artificial wetlands, tributaries and other types of waters are regulated due to their relationship with downstream waters and watersheds. As the news release provides, the proposed rule clarifies that the following are ...
On January 7, federal agencies, including EPA, published in the Federal Register the Agency's proposed regulatory agendas for 2014. EPA's agenda was generally consistent with the unified agenda published prior to Thanksgiving. EPA's agenda will propose final or substantial action on a range of issues including climate change, reforming certain chemical regulations, and updating water regulations. Many of these have long been in the regulatory pipeline. For example, EPA's rule to limit greenhouse gas emissions for new fossil fuel-fired power plants will apparently finally go ...
On January 14, the U.S. Environmental Protection Agency announced that Heather McTeer Toney has been appointed by President Obama as regional administrator for EPA's regional office in Atlanta. Ms. McTeer Toney was the first African-American and first female to serve as the Mayor of Greenville, Mississippi, holding that post from 2004-2012. Thereafter, she served as the Executive Director of the Center for Excellence in Student Learning at Mississippi Valley State University, and as the principal attorney at Heather McTeer, PLLC. For more information on environmental law ...
A significant issue in the recent federal government shut down was the fundamental question over the scope of government authority and its role in a wide range of activities. In short, should there be any government involvement with respect to particular issues? While the shut down focused most directly on the federal healthcare program, similar questions have been raised both about Congressional enactments over things such as environmental protection, and the scope of those enactments as reflected by regulation. These policy and practical issues are playing out now with respect ...
In mid-September, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly submitted a proposed rule to the White House Office of Management and Budget intended to clarify which waters and wetlands are protected under the Clean Water Act. The proposed rule represents these agencies' latest effort to clarify the scope of federal jurisdiction under the CWA and thereby resolve long standing uncertainty about which water bodies and activities are regulated by the law. The proposal, if adopted, would likely have its most significant impact on small streams and ...
On September 20, EPA issued a proposed rule to restrict carbon emissions from new coal and gas-fired power plants. The restrictions are anticipated to require carbon capture and sequestration for any new coal-fired plants. EPA also has announced plans to issue a rule regulating carbon emissions from existing coal-fired plants in 2014. EPA is proposing two standards for natural gas-fired plants: 1,000 lb CO2/MWh for larger units (>850 mmBtu/hr) and 1,100 lb CO2/MWh for smaller units ( ‰¤850 mmBtu/hr). EPA is proposing two alternative limits for fossil fuel-fired plants: 1,100 ...
Just as Mary Hatch and George Bailey listened to Sam Wainwright's "chance of a lifetime offer" in the holiday classic, It's a Wonderful Life; newly installed EPA Administrator, Gina McCarthy's Harvard audience listened as she explained last week that preventing climate change is the "opportunity of a lifetime." Administrator McCarthy touted sparking innovation, growing jobs and strengthening the economy as just a few of the opportunities presented by curbing greenhouse gases. Her suggestion that environmental protection can spur economic growth should foster a ...
Updating an ongoing issue related to options for new ash regulations, the U.S. House of Representatives passed the Coal Residuals Reuse and Management Act (H.R. 2218) on July 25, 2013. The legislation would regulate the ash from coal-fired power plants by classifying it as a solid waste under Subtitle D of the federal Resource Conservation and Recovery Act. The prospect of some form of enhanced regulation of coal ash has been a contentious issue for several years. Following a 2008 breach of a coal ash impoundment operated by TVA in Kingston, Tennessee, the Environmental Protection ...
The confirmation of Gina McCarthy to become the next Administrator of the United States Environmental Protection Agency continues to be delayed by Republicans in the U. S. Senate. A procedural "hold" has been placed on the nomination, and in addition, several Senate Republicans also point to a lack of response to several questions related to transparency at EPA. The hold, which is a courtesy procedure, allowed to each member of the Senate with respect to nominations, was placed in March by Senator Roy Blunt (R-MO) as explained in a news release posted by Sen. Blunt's office. Senator ...
EPA has extended the public comment period on its proposed Tier 3 Motor Vehicle Emission and Fuel Standards from June 13, 2013 to July 1, 2013. The May 29, 2013 Federal Register notice announcing the extension can be found here: PROPOSED RULES Control of Air Pollution from Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards, 32223 http://www.gpo.gov/fdsys/pkg/FR-2013-05-29/html/2013-12749.htm. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you ...
On June 15, 2012, EPA approved the first applications for the use of E15 Ethanol/Gasoline blend. Since that time, a dispute has emerged regarding the potential benefits and problems associated with a transition from the current standard E10 blend to E15. The situation became more focused following EPA's issuance on March 29, of proposed rules referred to as the Tier 3 Vehicle Emissions and Fuel Standards. These rules, which are proposed to become fully effective in 2017, are intended to reduce gasoline sulfur levels by more than sixty percent (60%) and reduce smog-forming volatile ...
The U.S. EPA has issued for public comment a draft of its most recent National Rivers and Streams Assessment (NRSA). The Assessment involved sampling over 1,900 points along wadeable waterways in the contiguous 48 States during 2008 and 2009, and updates a similar study done in 2004. Comments must be emailed to nrsa-hq@epa.gov by 11:59 p.m. May 9, 2013.
Among the key findings: 55% of the nation's river and stream miles do not support healthy populations of aquatic life, with phosphorus and nitrogen pollution and poor habitat the most widespread problems. An additional 23% of river and ...
The recent decision in Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013) vacated all of EPA's rules on Significant Monitoring Concentrations ("SMCs"), as well as some (the Prevention of Significant Deterioration ("PSD") portion) of the Significant Impact Levels ("SILs") for Particulate Matter in air emissions measuring 2.5 micrometers in diameter or smaller ("PM2.5"). As a result permit applicants have fewer screening tools available when seeking exemption from analysis and monitoring requirements under the Clean Air Act ("Act").
A. Background for the Act, NAAQS ...
UPDATE to previous article: EPA Confirms Uncertainty Over Timing Of Final Coal Ash Rule
As anticipated in a previous posting, President Obama has formally nominated Gina McCarthy to be the next Administrator of the U.S. Environmental Protection Agency. McCarthy brings to the position notable experience at both the state and federal levels. She joined EPA in 2009, and currently serves as Assistant Administrator for the Office of Air and Radiation. Prior to joining EPA, she served as Director of state environmental agencies in both Connecticut and Massachusetts, the latter in the ...Previously, we referenced an article in Bloomberg BNA reporting on an interview with an EPA representative who indicated that the Agency could not provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants. EPA has now more formally confirmed this uncertainty. Recently, in announcing projected publication dates for a wide range of rules in various stages of development, EPA effectively acknowledged that there is no target date for the final rule. This is also reflected on EPA's web page which tracks the history of the ...
The U.S. Environmental Protection Agency recently announced that it has reached an agreement with the Wisconsin Builders Association, the National Association of Home Builders and others to settle litigation challenging revised standards regulating construction stormwater discharges, including a regulation establishing numerical turbidity limits. The standards were initially adopted in 2009 and then included in the Agency's final construction stormwater permit in 2012.
The Settlement Agreement, which was filed in December, addressed a number of issues raised in the ...
A recent article carried by Reuters News Service reports that President Obama favors Gina McCarthy to replace Lisa Jackson as Administrator of the U. S. Environmental Protection Agency. In December, Jackson indicated a desire to step down from the position.
McCarthy currently heads EPA's Office of Air and Radiation. Prior to going to EPA, she led State environmental agencies in Massachusetts and Connecticut. These state agency positions included her involvement with the Northeastern states' Regional Greenhouse Gas Initiative. That, coupled with her current role in air policy ...
On January 15, 2013, the U.S. Environmental Protection Agency (EPA) finalized revisions to standards to reduce air pollution from stationary engines that generate electricity and power equipment at industrial, agricultural, oil and gas production, power generation and other facilities. The final amendments to the 2010 "National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines (RICE)" reflect new technical information submitted by stakeholders after the 2010 standards were issued. According to EPA, the final amendments ...
A recent article in Bloomberg BNA reports that the U.S. EPA (Environmental Protection Agency) is currently unable to provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants. This continues a protracted rulemaking process, which has prompted an extraordinary number of public comments, approval of legislation by the House of Representatives to limit EPA's options, and litigation to force a final decision. The rulemaking history to date has been a mix of complexity, indecision, and contentiousness. It has its origin ...
It's almost never easy to fathom federal environmental regulations and this held true when a set of regulations was recently issued by the U.S. EPA. On December 20, 2012, the Agency issued a series of rules, primarily under the Clean Air Act, to address emissions from sources generally classified as boilers or incinerators. Part of the regulatory package also included revisions to standards and procedures enacted under authority of the Resource Conservation and Recovery Act ("RCRA") that will determine whether non-hazardous secondary materials constitute waste when burned in ...
In answering a certified question from a federal district court, the Alabama Supreme Court concluded that action by the Environmental Protection Agency ("EPA") naming an insured as a Potentially Responsible Party ("PRP") satisfied the definition of "suit" under the insured's Comprehensive General Liability ("CGL") policy. From shortly after World War II through the early 1980's, Alabama Gas Corporation ("Alagasco") maintained CGL policies with Travelers Casualty and Surety ("Travelers"). Alagasco had owned and operated a manufactured gas plant in Huntsville ...
The Alabama Department of Environmental Management (ADEM) has apparently ended its effort to require payment of fees to review groundwater assessments and remediation plans, at least for the time being. Approximately a year ago, ADEM's Groundwater Program initiated a process attempting to require the execution of formal Remediation Agreements as a part of assessment requirements for releases which threatened or impacted the groundwater. This was prompted by recent reductions in appropriations by the State's Legislature to the Department. While much of ADEM's funding comes ...
The Supreme Court had oral arguments last Monday (December 3) in Decker v. Northwest Environmental Defense Center, just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a NPDES permit is not required for stormwater discharges from logging roads. EPA, in its statement on the new rule, says: "In Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a ...
Georgia EPD is proposing to require any new inert waste landfill operations to obtain an inert waste landfill solid waste handling permit. It also provides a transition period to allow existing inert waste landfill operations to comply with these new requirements or close under the existing inert waste landfill permit by rule closure criteria. EPD will be requiring specific design and operational criteria, and will impose a solid waste handling permit process to replace the existing notification of permit by rule (PBR) operations.
The Land Protection Branch of Georgia EPD recently announced several organizational changes. The reorganization became effective on August 1, 2012. Included among the Branch reorganization are: - The position of Assistant Branch Chief has been established and is held by Jeff Cown - A new Special Projects role for data management and work process improvements is held by Renee Hudson Goodley - Response and Remediation Program now includes the Brownfields Unit. Derrick Williams has assumed the role of Program Manager, moving from the Underground Storage Tank Program - The new ...
On August 13, the Fifth Circuit Court of Appeals issued its decision in State of Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), affirming Texas's State Implementation Plan (SIP) allowing for "flexible permits." Under Texas's Flexible Permit Program, a facility may make modifications without agency review so long as aggregate emissions do not exceed an emissions cap for the facility. The case could have broader implications across the country, if other courts adopt the Fifth Circuit's reasoning to allow increased flexibility in state air permitting programs. In this case ...
On July 12, EPA issued its Final Step 3 Tailoring Rule, announcing that EPA has decided not to lower the greenhouse gas (GHG) permitting levels and therefore will not be including additional, smaller sources in the PSD/Title V permitting programs at this time. 77 Fed. Reg. 41,300 (2012). For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.
On June 26, the D.C. Circuit Court of Appeals rejected industry petitions challenging the Environmental Protection Agency's (EPA) rules limiting greenhouse gas emissions, finding that none of the challengers had standing to bring suit. The petitions targeted EPA's "tailoring" rule, which requires major polluters to obtain permits for their greenhouse gas emissions; the "tailpipe" rule, which sets standards for greenhouse gas emissions from cars and light-duty trucks beginning in the 2012 model year; and the "timing" rule, which limits greenhouse gas emissions from ...