In early August 2023, the U.S. Environmental Protection Agency (EPA) issued a proposed denial of Alabama’s permit program to manage coal combustion residuals (CCR) in landfills and surface impoundments within the state. The decision evidently came as a surprise to the Alabama Department of Environmental Management (ADEM), the environmental regulatory agency that intends to manage Alabama’s CCR permitting program, as ADEM had been communicating and working with EPA on CCR program efforts for several years prior to the announcement. In addition, other states that have ...
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 ...
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 ...
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 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 ...
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 ...
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 ...
EPA Administrator Pruitt announced on Monday that the Agency has completed a midterm evaluation of greenhouse gas emissions standards for cars and light-duty trucks for the model years 2022-2025. He has determined that the data is not sufficient to support the standards as currently written and that they should be revised. (EPA News Release and EPA draft notice to Federal Register). The announcement reflects the continuation of a push by auto manufacturers urging the Trump Administration to roll back these particular regulations. In February of 2017, the President met with auto ...
On February 20, the Environmental Protection Agency published in the Federal Register a request for comments on a longstanding EPA policy regarding the question of whether and to what extent discharges to groundwater might be covered under the Clean Water Act (CWA). EPA is also seeking comment on specific aspects of the central question. The notice can be viewed here (Federal Register 02/20/2018).
This request involves EPA policies that are not necessarily well known, but which are based on certain basic provisions of the CWA. The Act specifically prohibits discharge of any ...
In late January, EPA issued a guidance memorandum related to major sources under § 112 of the Clean Air Act that will likely reduce participation in the program. The new guidance actually withdrew a previous guidance policy in which EPA took the position that, if a source emitting air pollutants under § 112 ever attains "major source" classification, it would always retain that classification. (EPA Reclassification Notice). This original once-in-always-in policy meant that a source would always remain classified as a major source even if subsequent changes in operations allowed ...
In mid-December, EPA issued its semi-annual regulatory agenda reflecting rulemaking activities scheduled for 2018 and beyond. The overall announcement is reflected in the EPA press release and detailed explanations are available the Agency's Statement of Priorities posted on the Office of Management and Budget's website and a more specific individualized rule assessment provided at regulations.gov.
The Agency's Statement of Priorities includes a statement of its general goals. As to its regulatory responsibilities, the Statement indicates, among other things, that EPA ...
The commissioners of the Tennessee Department of Environment and Conservation (TDEC) and the Tennessee Department of Agriculture (TDA) recently responded to EPA Administrator Scott Pruitt's request to States for comments regarding the definition of waters of the United States (WOTUS). In particular, the Administrator sought input as to how to define "relatively permanent" waters and "wetlands with continuous surface connections" consistent with the Plurality Opinion by Justice Scalia in Rapanos v. U.S. The request by Administrator Pruitt is consistent with President ...
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 ...
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 ...
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 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 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 ...
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 ...
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 ...
- Alabama Pushes Back on EPA Proposed CCR Program Denial
- Alabama Landfill Local Approval Bill Passes
- Legislation Seeks to Expand Alabama Brownfields Program
- New Tennessee Brownfield Legislation May Open Opportunities
- Waters of the United States: Back to the Future
- EPA Continues its Journey Down the PFAS Road(map)
- Alabama Incorporating PFAS Requirements into Permits for Certain Industrial Categories
- EPA Announces Effort to Streamline TSCA Review of Chemicals Used in Electric Vehicle, Semi-conductor, and Clean Energy Sectors
- Supreme Court Says EPA Went Too Far on Regulating Climate Change
- U.S. Department of Justice Issues New Policy on SEPs
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