As we previously wrote on this blog, the U.S. Environmental Protection Agency finalized New Source Performance Standards for methane emissions from the oil and gas industry on June 3, 2016. Both industry and environmental groups later submitted petitions for reconsideration of certain aspects of these New Source Performance Standards (the Methane Rule), which are now pending for consideration by the EPA Administrator.
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On September 7, 2016, the United States Environmental Protection Agency (EPA) issued a final rule updating the Cross-State Air Pollution Rule (CSAPR) ozone season trading program.  The rule promulgates more stringent ozone season NOx budgets in several states.  CSAPR was promulgated to implement the “good neighbor” provision of the Clean Air Act, which requires states to address the transport of pollution across state lines.
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Environmental groups continue their attack on long-standing rule provisions under the Clean Air Act that limit or exclude liability related to “startup, shutdown, and malfunction” events. Historically, USEPA has acknowledged that it may be impracticable, if not impossible, for industry to meet emissions standards during certain periods, including during startup, shutdown or malfunction events, when emissions are typically higher than during normal operation. However, in May 2015, in response to prior challenges, USEPA instructed 36 states to revise their implementation plans with regard to SSM events.
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The United States Environmental Protection Agency (EPA) is cracking down on alleged sham recycling with the issuance of a final “Definition of Solid Waste” Rule. The rule aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste, Pre-Publication version (Dec. 9, 2014) (to be codified at 40 CFR Parts 260 and 261) (the Rule). The 2008 rule exempted hazardous secondary materials that would be reclaimed from the definition of solid waste. Doing so, according to EPA, effectively de-regulated 1.5 million tons of materials, such as arsenic, benzene, trichloroethylene, lead and mercury. Environmental groups and EPA claim that the deregulation resulted in third-party recyclers over-accumulating materials, increasing the risk of accidents and environmental releases. Consequently, the Rule redefines certain materials as hazardous waste and implements stricter controls on facilities and processes.
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On December 19, 2014, the U.S. Environmental Protection Agency (EPA) issued a 745-page prepublication version of its final rule governing the landfill and surface impoundment management of coal combustion residuals (CCR) from coal-fired power plants. The rule is to become effective six months from the date of its publication in the Federal Register (expected to occur by the end of the year). Important features of the rule include the following:
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Final Rules

On November 13, 2014, the United States Environmental Protection Agency (USEPA) finalized revisions to the Greenhouse Gas Reporting Program (GHGRP) for the petroleum and natural gas systems source category. 40 C.F.R. part 98, subpart W (subpart W).  The final revisions also revise the general provisions (subpart A). 
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The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed the contours of the general statement that U.S. EPA’s decisions in an “on-going” remediation may not be challenged under CERCLA.  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Prior to Frey, courts applying this provision had found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.
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Murray Energy Corp. Suit Allowed to Proceed

Upon publication of the proposed “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units” (also referred to as the Proposal or Clean Power Plan), on June 18, 2014, Murray Energy Corp. filed a petition for writ of extraordinary relief, alleging that the United States Environmental Protection Agency (USEPA) does not have the legal authority under the Clean Air Act to finalize performance standards for existing sources under Section 111(d).  Murray Energy Corporation v. U.S. Environmental Protection Agency, No. 14-1112 (D.C. Cir. filed June 18, 2014).  A week later, on June 25, 2014, a group of nine states filed an amici curiae brief, urging the D.C. Circuit to grant Murray Energy’s petition for writ, prohibiting USEPA to continue with its rulemaking.
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In a major reversal for the United States Environmental Protection Agency (USEPA), the Supreme Court on June 23, 2014, limited USEPA’s authority to regulate greenhouse gases (GHGs), holding that USEPA did not have the authority to change a statutory applicability term of the Clean Air Act (Act).  Utility Air Regulatory Group v. Environmental Protection Agency, et al. (UARG), No. 12-1146, slip op. (June 23, 2014).  “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers.”  Id. at 23.  As a result, the Court concluded that USEPA cannot require a Title V or Prevention of Significant Deterioration (PSD) permit solely on the basis of a source’s GHG emissions.
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A Phase I Site Assessment is used primarily to investigate commercial real estate for environmental conditions.  The American Society for Testing and Materials (ASTM) International provides a Standard Practice for environmental professionals undertaking a Phase I Site Assessment.  Last fall, ASTM International published a revised version of the Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or “ASTM E1527-13.”  
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