Latest Blog Posts


April 10, 2014 12:56 PM | Posted by William Brady
Recently the Environmental Protection Agency (“EPA”) sent a “prerule” notice to the White House Office of Management and Budget (“OMB”) in an initial effort to determine what reporting might be required for chemicals used in hydraulic fracturing.  OMB’s Office of Information and Regulatory Affairs announced last month that it had received an “advance notice of proposed rulemaking” from EPA concerning the potential regulation of chemicals used in “fracking.” According to the Unified Agenda listing for this rulemaking (RIN: 2070-AJ93), this action was initiated in response to a petition filed under section 21 of the Toxic Substances Control Act (“TSCA”).    
April 8, 2014 12:27 PM | Posted by William Brady
On April 7th the Colorado Supreme Court, en banc, granted a petition for writ of certiorari filed by Antero Resources, agreeing to review the decision of the Colorado Court of Appeals which reversed the trial court’s grant of a “Lone Pine” order. No. 13 SC 576, Court of Appeals Case No. 12 CA 1251, Antero Resources Corporation, et al, Petitioners v. William G. Strudley, et al., Respondents. (Cert. granted, April 7th, 2014.) The Colorado court agreed to consider whether a district court is barred as a matter of law from entering a modified case management order requiring the plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery. The court also agreed to consider whether, if such modified case management orders are not prohibited as a matter of law, the district court in this case acted within its discretion in entering and enforcing such an order.
April 3, 2014 9:43 PM | Posted by Andrew Brought
Earlier today, April 3, 2014, the U.S. Department of Justice announced its largest ever environmental enforcement recovery case involving a $5.15 billion settlement, $4.4 billion of which will go to environmental cleanup and claims. The settlement, with Kerr-McGee Corporation and certain of its affiliates, along with their parent company Anadarko Petroleum, arose from the 2009 bankruptcy of Tronox, Inc., and a December 2013 ruling by the federal bankruptcy court finding a fraudulent transfer of assets to avoid paying environmental cleanup obligations.
March 23, 2014 2:47 PM | Posted by Andrew Brought
On March 6, 2014, EPA published its final rule for construction activities which will require the use of best management practices (BMPs) in lieu of numeric criteria for turbidity.
March 17, 2014 8:33 PM | Posted by Andrew Brought
On March 12, 2014, OSHA cited Schwan's Global Supply Chain Inc., for a number of alleged process safety management (PSM) violations at the company’s Atlanta facility concerning the storage and use of the industrial refrigerant anhydrous ammonia. OSHA is seeking more than $185,000 in penalties associated with the facility’s PSM and related OSHA violations.
March 8, 2014 3:34 PM | Posted by Andrew Brought
On March 5, 2014, EPA announced that it was approving SIP revisions to the Missouri SIP regarding start-up, shutdown, and malfunction (“SSM”) conditions, effective April 4, 2014.  79 Fed. Reg. 12394 (Mar. 5, 2014).
March 8, 2014 3:02 PM | Posted by Brian Peterson
Under the Fair Labor Standards Act (“FLSA”), employers are required to compensate employees for time spent changing clothes before the workday has started and after the workday has ended if doing so is integral and indispensable to the employees’ employment. But the FLSA also states that employers and unions may mutually agree that time spent changing clothes is not compensable. 29 U.S.C. § 203(o). These conflicting rules raise an important question. Can employers and unions mutually agree that employees will not be compensated for time spent putting on and taking off clothing that is necessary to perform their job? The Supreme Court of the United States recently announced that the answer to that question is yes. Unions and employers may mutually agree that employees will not be compensated for time spent changing clothes even if that clothing is necessary to safely perform their job. Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241 (U.S. Jan. 27, 2014).
February 23, 2014 6:19 PM | Posted by Baerbel Schiller
EPA is attempting to expedite cleanup at thousands of hazardous waste sites across the United States by directing its corrective action program to focus on practical cleanup strategies rather than on process. This emphasis should yield faster and more efficient cleanups for industrial facilities in that program.
February 9, 2014 8:48 PM | Posted by Baerbel Schiller
Belatedly EPA may be recognizing that the RCRA regulatory scheme was not intended to regulate secondary materials generated during retail operations, and EPA has decided to seek input from retailers on potential changes to how the Agency regulates retail operations. Retailers have been EPA enforcement targets during the last few years and EPA has collected substantial penalties. Recently EPA announced that it was releasing a retail sector specific Notice of Data Availability (NODA). EPA is asking the retail industry for comments on retail operations data collected by the Agency including the quantity of hazardous waste generated during such operations.
January 26, 2014 9:50 AM | Posted by Andrew Brought
EPA Region 2 and the U.S. Attorney’s Office for the Eastern District of New York recently announced a significant settlement involving underground storage tank (UST) violations for tank systems owned and operated by the County of Suffolk, New York. The settlement serves as a timely reminder of the RCRA compliance obligations for states, counties, municipalities, and local governments that own and operate vehicle fleets, USTs, and tank systems at fueling facilities for Police, Fire, Department of Public Works, Department of Transportation, and related governmental departments.
January 16, 2014 3:19 PM | Posted by William Brady
In the controversy over potential health effects from hydraulic fracking and the injection of chemicals to abet oil and gas extraction processes, a December 16th, 2013 study released by U. of Missouri-Columbia on Colorado fracking sites has garnered significant attention.    Published in the journal, Endocrinology, the study focused on a selected subset of chemicals, including over one hundred known or suspected endocrine disrupting chemicals (“EDCs”), used in natural gas drilling operations, as well as surface and ground water samples collected in a drilling region of Garfield County, CO.
January 12, 2014 8:40 PM | Posted by William Brady
As Delaware has often been selected as a preferred place of incorporation by U.S. businesses, and consequently the venue for dissolution and bankruptcies, the recent decision by the Delaware Supreme Court, In the Matter of Krafft-Murphy Co., Inc., No. 85, 2013 (Del. Nov. 26, 2013), holding that insurance contracts remained property of the dissolved corporation may have significant implications for “orphan shares” at co-disposal, environmental remediation sites, as well as for non-environmental liabilities. As in other states, otherwise formerly insolvent corporations may find themselves once again parties to litigation as potential creditors seek to attach insurance assets.
January 5, 2014 4:18 PM | Posted by Frank McNulty
Colorado is not alone in experiencing the job creation and economic development that is associated with the more robust development of traditional energy resources. States like Oklahoma, Wyoming and Texas, which are normally associated with energy development, have been joined by states like North Dakota, Ohio and Pennsylvania. These new “plays” are made possible by the modern use of a technology that has been around since the 1940’s – hydraulic fracturing.

December 29, 2013 8:41 PM | Posted by Andrew Brought
Effective December 30, 2013, parties may use the 2013 Phase I Environmental Site Assessment standard ASTM E1527-13 to satisfy the All Appropriate Inquiries Rule, according to the EPA. And while the agency has not yet removed references to the 2005 standard in the final rule, 78 Fed. Reg. 79319 (Dec. 30, 2013), EPA clarified that it intends to issue a proposed rule to remove the references to the 2005 standard.
December 16, 2013 8:54 PM | Posted by Andrew Brought
On November 25, 2013, EPA issued a new groundwater cleanup guidance document specifying the need for a well-by-well review when determining whether groundwater restoration remedial action is complete.
December 1, 2013 2:17 PM | Posted by Andrew Brought
EPA and OSHA continue to target companies that store and use the industrial refrigerant anhydrous ammonia as reflected in recent EPA Risk Management Plan (RMP) enforcement and OSHA enforcement of the Process Safety Management (PSM) regulations. Failures in the Mechanical Integrity requirements were prevalent in both enforcement cases.
November 24, 2013 8:46 PM | Posted by Andrew Brought
On November 12, 2013, OSHA Region 7 announced a new Local Emphasis Program applicable in the states of Kansas, Nebraska, and Missouri, that will specifically target companies for OSHA inspections based on their Toxic Release Inventory (TRI) submissions to the U.S Environmental Protection Agency (EPA).
November 17, 2013 6:15 PM | Posted by Kate Whitby
On November 12, 2013, the First Circuit Court of Appeals handed down its decision in VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC, slip op. (1st Cir., 2013). This decision serves as a reminder that courts will look carefully at the words used in a loan agreement’s environmental indemnity provisions to decide whether or how they apply. If the actual wording chosen (likely many years earlier) does not fit the environmental costs sought to be indemnified, the party pursuing indemnity may be greatly disappointed.
November 7, 2013 9:39 PM | Posted by Andrew Brought
On November 6, 2013, ASTM issued its revised standard practice for conducting Phase I Environmental Site Assessments (ESA), with an effective date of November 1, 2013. Now the wait begins to see if EPA will continue to allow the 2005 version of the Phase I ESA standard E1527-05 to satisfy the All Appropriate Inquiries Rule (AAI) at 40 CFR Part 312, or whether the new revised E1527-13 completely supersedes the prior version.
November 3, 2013 8:32 PM | Posted by Andrew Brought
ConAgra Foods, Inc. and ConAgra Grocery Products, LLC, have agreed to settle alleged violations of the Clean Water Act’s Spill Prevention Control and Countermeasure (SPCC) requirements and the Facility Response Plan (FRP) regulations. The violations were identified by EPA Region 4 during an October 2007 inspection at ConAgra’s plant in Memphis, Tennessee, that refines crude vegetable oil into cooking oils for consumer and commercial use.