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United States Supreme Court Building, Washington, DC

A landmark Clean Water Act (CWA) decision by the U.S. Supreme Court presents an entirely new test to use to determine if a discharge requires federal permitting. Under the April 23 decision in Hawaii Wildlife Fund v. County of Maui, a National Pollutant Discharge Elimination System (NPDES) permit is required for groundwater discharges to “navigable waters” when the groundwater discharge is the “functional equivalent of a direct discharge” from a point source.…
Continue Reading Supreme Court Applies Entirely New Test to Determine Clean Water Act Applicability in Highly Watched Case

Washington State Capitol Building

The U.S. Supreme Court recently decided Atlantic Richfield v. Christian, a Superfund case involving landowners who sought to use state law claims to compel Atlantic Richfield, the successor by merger to a copper smelting company, to perform a more extensive cleanup than federal regulators had required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While formally remanding the landowners’ claims to state court for further evaluation because the claims require the federal EPA’s permission to meaningfully proceed, the decision emphasizes the EPA’s continued primacy in remedial decision making. The decision should give a measure of comfort to parties performing federally supervised cleanups. But parties still may be vulnerable to state court claims by landowners that convince the EPA that the remedies they request do not threaten overall cleanups.…
Continue Reading Three Takeaways from Atlantic Richfield Supreme Court Decision Emphasizing EPA Primacy in Remedial Decision Making

SH20_COVID-EPA

Environmental cleanup obligations can be among the most expensive liabilities and complex logistical challenges companies face. While some cleanup projects can be relatively minor in scope and occur in industrial areas far removed from where people live, other cleanup projects are essentially massive construction projects occurring in densely populated residential areas. In the best of times, these projects can involve large numbers of workers, vast amounts of equipment ranging from drilling rigs to barges, and take place over decades.  COVID-19 can pose major hurdles to such complicated work.…
Continue Reading Five Key Highlights of EPA’s COVID-19 Guidance for Cleanup Sites

Historically, the U.S. Environmental Protection Agency has relied upon advisory committees comprising members from the scientific community to advise the EPA on the development and implementation of regulations. The Trump Administration has taken measures in recent years to constrain the authority and composition of these committees. But the First Circuit’s recent decision in Union of Concerned Scientists v. Wheeler signals a limit on these measures – ruling in favor of a challenge to the administration’s attempt to bar scientists who had received EPA grants from being members of advisory committees.…
Continue Reading First Circuit Decision Signals Vulnerability of EPA Directive Limiting Scientist Membership in Advisory Committees

In recognition of the impact the COVID-19 outbreak is having on every facet of life, the U.S. Environmental Protection Agency (EPA) issued a temporary enforcement discretion policy to excuse certain civil violations occurring during and due to the COVID-19 pandemic. While the EPA expects regulated facilities to maintain compliance, the agency does not expect to seek penalties for noncompliance for routine environmental monitoring and reporting obligations provided certain conditions are met. Other activities, such as the reporting of accidental releases of pollutants, will not be subject to discretion. Importantly, the EPA will not be seeking enforcement of violations occurring while the policy is in effect, even after the COVID-19 crisis subsides and the policy is terminated. The policy is retroactive to March 13, 2020.…
Continue Reading EPA to Relax Civil Enforcement for Non-Compliance Due to COVID-19 Pandemic

No single answer exists for how the regulated community is expected to meet their environmental obligations or address potential delays in environmental compliance, especially amidst shelter-in-place orders in several states due to the COVID-19 pandemic. However, relief from environmental obligations during this pandemic may be available under certain environmental laws and legal obligations. The nature of that relief will largely depend on the specific legal requirement, the impact on the source itself, and the evolving response by federal and state governments to the COVID-19 outbreak.
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Continue Reading Environmental Compliance Relief and Requirements During Shelter-in-Place Mandate

Department of Justice sign, Washington DC, USA

Both communities and companies will no longer benefit from the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions, following the United States Department of Justice’s (DOJ) comprehensive policy review and prohibition of the practice in all settlements. Despite 30 years of productive use backing these mutually beneficial arrangements, which began during my time at the DOJ in the 1990s, the DOJ has officially called it quits for now – at least until the next administration has a chance to reconsider this decision. For those who have not been immersed in these environmental enforcement actions, SEPs allow settling parties to mitigate a portion of a civil penalty in exchange for performance of environmentally beneficial projects.…
Continue Reading Everyone Loses with New DOJ Policy Ending 30-Year Practice of Supplemental Environmental Projects

Hand knocking on the door

Federal officials often conduct unannounced, sometimes intrusive inspections of regulated entities, which can be a major disruption to companies’ operations and has historically left them with little to do about it but wait for the interruption to pass – until now. The Office of Management and Budget (OMB) and the U.S. Environmental Protection Agency (EPA) recently issued two documents aimed at improving the efficiency and normalizing the process of conducting environmental inspections and investigations.…
Continue Reading Regulated Entities: It’s Time to Speak Up if You Don’t Like How Federal Agents Come Knocking

The U.S. Environmental Protection Agency (EPA) announced last week its latest step in the implementation of its Action Plan—a preliminary regulatory determination regarding two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Action Plan was issued in February 2019 and outlined the agency’s efforts to address PFAS contamination in groundwater. This latest step comes on the heels of the EPA’s November 2019 proposal to add PFAS to the list of chemicals for which facilities must report use under the Emergency Planning and Community Right to Know Act (EPCRA).
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Continue Reading EPA Takes One Step Closer to Regulating PFAS in Drinking Water

Forest and tree landscape texture background, Aerial top view forest, Texture of forest view from above.

The Trillion Trees Initiative was in focus at the January 2020 World Economic Forum in Davos. President Trump endorsed the initiative in his State of the Union address. Companies may want to consider this and other green initiatives as the trend for company sustainability continues to gain traction.…
Continue Reading The Trillion Trees Initiative and Sustainability