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 – ...
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 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 ...
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 ...
President Trump has proposed a dramatic cut in funding for the Environmental Protection Agency, the new EPA Administrator has suggested rollbacks in regulations, and there are even proposals to abolish the Agency entirely. Regardless of what eventually happens, changes are afoot, and they are likely to be significant.
At the outset, it's probably worth noting that, although there have been calls for the abolition of EPA, including at least one recently filed bill in the U.S. House that would do just that and shift responsibilities to other agencies (Pensacola News Journal), that ...
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 ...
EPA is increasing civil penalties for all statutes it administers that call for the assessment of civil penalties. These increases are not recommendations or proposed statutory amendments, but are the result of perhaps the little known 2015 amendment to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended through 2015 ("the 2015 Act"). This Act applies to all federal agencies that have authority to assess civil penalties and not just EPA. EPA's interim final rule adjusting the level of statutory civil monetary penalties was issued June 23, 2016. It will be ...
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 ...
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 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 ...
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 U. S. Supreme Court's March 20, 2013, decision in Decker v. Northwest Environmental Defense Center is good news for the logging industry. The Clean Water Act (Act) and EPA's Silvicultural Rule (Regulation) do not require National Pollutant Discharge Elimination System (NPDES) permits for discharges of chan neled stormwater runoff from logging roads. Permits will be required for logging operations that involve rock crushing, gravel washing, log sorting and log storage facilities. Georgia-Pacific West had a contract with Oregon to har vest timber from a state forest. When ...
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 ...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 ...