Posts tagged environmental protection agency.

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 ...

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 ...

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 problems with the quality of drinking water in Flint, Michigan, are not necessarily an isolated collection of failures. From a technical standpoint, the potential for lead leaching into drinking water systems in many places in this country is a real issue. That potential is compounded if we see a repeat of the range of bureaucratic failures that occurred in Flint. The basic conditions that exist in Flint are not unique; they are prevalent at least in the older water systems of the Northeast and Midwest. (National Geographic). As that article points out, the potential for leaching of ...
As the New Year begins, a number of issues will compete for attention from Congress and the courts, and we may even get some final determinations about matters that have been long simmering. Much of the substantive work of the Obama Administration has been put into place and is currently subject to various challenges. Many of these will either be decided or will progress substantially during the coming year. Nonetheless, EPA has proposed a full agenda of rulemaking activities for 2016, including both projected notices of proposed rulemaking and publication of final rules for a wide ...

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 ...

Posted in: Climate Change

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 ...

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 ...

EPA's new rules for limiting emissions of carbon dioxide for both existing power plants and proposed plants have prompted at least two substantive reports by public policy institutes focusing on the economic aspects of the proposals. The Beacon Hill Institute at Suffolk University and The Heritage Foundation have recently published reports that estimate the potential costs, particularly in terms of jobs, associated with the adoption of these regulations. These reports can be viewed here (Beacon Hill) and (Heritage Foundation). The Heritage Foundation report has apparently ...
The process of hydraulic fracturing (also known simply as "fracking") continues to divide the public and public policymakers, even as resulting lower natural gas prices have encouraged industries, including many power plants, to convert from coal-fired boilers as one means as coping with coming limitations on the emissions of carbon monoxide. Local concerns about fracking activity have their origin in concern about pollution of drinking water sources. Those concerns have now expanded to include concerns about the management of fracking fluid wastes and the possibility that ...
Expectations are running high among some that the incoming Republican majority in both Houses of Congress will act to change or eliminate various environmental regulations and statutory provisions that they claim harm the economy. Interest groups are extending these efforts to enlist State officials in opposing these regulations at that level and, for his part, President Obama has indicated an intent to use his veto authority in an effort to prevent major changes in regulation and policy. One of the foremost issues of concern on the part of many Republicans is the proposal to limit ...
December 19, 2014 marked the deadline for the Environmental Protection Agency (EPA) to announce its final decision regarding a new regulatory scheme for coal ash disposal (Coal Combustion Residuals or CCR). The new regulations are to focus on the disposal of coal ash. The pressure for new regulations began mounting after the rupture of a Tennessee power plant in 2008 which sent over 1 billion gallons of coal ash into nearby Tennessee rivers. Subsequently, on February 2, 2014, a Duke Energy plant released approximately 39,000 tons of coal ash into the Dan River in North Carolina. During ...
On October 6, 2014, the Environmental Protection Agency ("EPA") adopted a final rule which will eventually eliminate one of the two recognized ASTM International standards to conduct environmental site assessments, which were designed to comply with EPA's "All Appropriate Inquires Rule" ("AAI"). Complying with the AAI rule is required to claim protection from CERCLA (Superfund) liability as a bona fide prospective purchaser, contiguous property owner, or innocent landowner. Effective October 6, 2015, ASTM International's Standard E1527-05 will not be recognized as ...
An increasingly pitched battle between business and agricultural interests over the blending of ethanol in gasoline has turned its focus to EPA's rulemaking mandate which sets the minimum volume of renewable fuel sold annually in the U.S. This Renewable Fuel Standard (RFS) has drawn significant attention because opponents of the use of ethanol in gasoline and diesel fuels believe that there is little if any likelihood of congressional action in the near term. The EPA has proposed to reduce the volume of ethanol that must be blended into gasoline this year, while keeping the biodiesel ...
Our firm has recently represented clients in two projects associated with brownfields that may signal an increased willingness on the part of regulatory authorities to facilitate redevelopment of contaminated properties. As individuals and companies around the nation began to reassess the impacts of sprawl, the ability to redevelop brownfield properties provides an opportunity to make these properties productive to the benefit of the new owner directly and the community generally. One project involved the redevelopment of a portion of an abandoned automobile manufacturing ...
On March 25, the US Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule to clarify Clean Water Act jurisdiction over streams and wetlands by re-defining "Waters of the United States" in light of a series of Supreme Court decisions wrestling with the issue of whether a particular water body (e.g., "isolated wetlands," man-made ditches and the like) were subject to regulation under the Clean Water Act. The proposed rule seeks to clarify regulation over upstream waters and to increase efficiency in determining coverage of the Clean Water Act ...
In mid-December, the U.S. Environmental Protection Agency issued final rules that the Agency said are intended to facilitate the management of carbon dioxide gas that is required to be captured from electric power plants. Summaries of the regulations and links to them can be found here and here. The rules are intended to support rules on carbon pollution standards for new power plants, which were published earlier this year in draft form and have not yet become final. Those draft regulations have been criticized for a number of reasons, including an assertion by industry that they ...
Posted in: Carbon, EPA, Regulations

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 ...

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. 

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 ...

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