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Andrew C. (Drew) Brought

Partner

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Ferrets, “Ipse Dixits,” and “Logical Fallacies”: Fifth Circuit Opinions Shine Light on Messy Citizen Suit Standing Precedents

Facility owners and operators with air permits will want to pay close attention to a recent Fifth Circuit ruling on a private citizen’s ability to seek penalties for/and defenses against alleged violations of the Clean Air Act.  Following a bench trial, an appeal, and another bench re-trial, this decade-old case has again gone up to the appeals court and had the trial court’s judgment vacated and remanded, this time to decide the Plaintiffs’ standing to bring the case in the first place and to judge the viability of two key affirmative defenses. Environment Texas Citizen Lobby, Inc. v. Exxon Mobil Corp., 66 F.Supp.3d 875 (S.D. Tex. 2014), vacated and remanded, 824 F.3d 507 (5th Cir. 2016), on remand, No. H-10-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26, 2017), vacated and remanded, slip op. No. 17-20545, 2020 WL 4345337 (5th Cir. Jul. 29, 2020), as revised (Aug. 3, 2020).  According to the majority opinion, the panel gave both the lower court and the regulated community guidelines for when each CAA violation is “fairly traceable” to a plaintiff’s alleged injury to support standing under Article III of the U.S. Constitution. According to the concurrence, the Fifth Circuit’s standing precedents are “a mess” that are trending toward the unconstitutional elimination of “but-for” causation; a paradox that should be clarified by the full court en banc to stop a continuing loop of confusion.

OSHA Fines Healthcare Facilities for Improper Use of N95 Respirators

Employers beware, particularly those in healthcare sectors.  If you provide a NIOSH-approved N95 “respirator” to protect employees from COVID-19, there are a number of OSHA respiratory protection standards that must be followed in a comprehensive Respiratory Protection Program.  The Department of Labor OSHA’s July 21, 2020, national press release makes clear that OSHA will seek the maximum possible penalties for serious violations against companies that do not fully satisfy the respiratory protection standards.

U.S. Supreme Court Reinstates Wetland Permitting Under Nationwide Permit 12

In a one paragraph, unsigned order issued July 6, 2020, the U.S. Supreme Court reinstated most uses of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for pipeline and utility trenching and construction, dredge and fill, and maintenance, inspection, and repair activities in or adjacent to wetlands and other waters of the United States. The Court’s order carves out and continues to disallow use of NWP 12 for the Keystone XL pipeline (the actual target of plaintiffs’ lawsuit). For our earlier alerts on this fast-moving litigation see here, and here, and here.

EPA and OSHA Continue Aggressive Enforcement of Accidental Chemical Releases

Accidental chemical releases in the workplace and offsite into the environment continue to be a high-priority enforcement area for both the U.S. Environmental Protection Agency and the U.S. Department of Labor’s OSHA, including releases of anhydrous ammonia and other toxic and flammable substances under the agencies’ RMP and PSM programs.

Partial Vacation of Nationwide Permit 12 Stands as Ninth Circuit Denies Emergency Stay

The partial vacation of Nationwide Permit 12 (NWP 12) will remain in place for now as the Ninth Circuit today denied emergency motions for a partial stay pending appeal. In its May 28, 2020, Order (available here) the Ninth Circuit held that appellants “have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.”

OSHA Refines Stance on COVID-19 Recordkeeping and Enforcement

On May 19, OSHA issued two enforcement memos regarding COVID-19.  The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related.  The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports.  These two memos are summarized below.

Nationwide Permit 12 Restored for Most Non-Pipeline Uses by Trial Court, While the Ninth Circuit Expedites Briefing on Emergency Motion for Stay

This week the U.S. District Court for the District of Montana restored use of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for some utility line construction and maintenance activities (primarily for non-pipeline projects) by restricting the scope of its earlier vacation of the permit, while the Ninth Circuit ruled on an initial round of briefings in the government’s request for an emergency stay.  The District Court’s April 15 decision has been the source of significant disruption because it not only blocked application of the popular nationwide permit to the Keystone XL pipeline (the subject of the litigation), but also barred any and all other uses of the permit.  See our earlier alert here.

Landowners Can Seek a Cleaner Cleanup in State Court

US Supreme Court Says Superfund Statute Allows Landowners to Seek Additional Remediation in State Court, but Delays Additional Work

On April 20, 2020, the United States Supreme Court issued its long-awaited decision allowing 98 private landowners in Montana to pursue a restoration damages claim against Atlantic Richfield Co. (as successor to the Anaconda Copper Mining Co.) based on Montana common law nuisance, trespass, and strict liability claims. Atlantic Richfield Co. v. Christian, et al, slip op., 590 U.S. ___ (April 20, 2020). After giving with one hand however, Chief Justice Roberts (writing for the Court) took with the other, and held that on remand, if the landowners persuade a Montana jury of their entitlement to restoration damages, absent EPA’s consent, they still may not use that right until after EPA’s approved cleanup is completed and the site is delisted from the NPL.

Scope of Clean Water Act Jurisdiction Set to Change

On April 21, 2020, the U.S. Army Corps of Engineers (“Corps”) and the Environmental Protection Agency published the finalized Navigable Waters Protection Rule in the Federal Register, ushering in significant changes to the definition of Waters of the United States (“WOTUS”), those waters federally regulated under the Clean Water Act.  The rule affects multiple Clean Water Act programs, including Section 404 (wetlands), Section 402 (end-of-the-pipe discharges), and Section 311 (oil and hazardous substance spills).  The rule is available here, and an EPA fact sheet regarding the rule is available here.  For more background information, our latest article regarding the WOTUS saga is available here

Federal Court Halts Wetland Permitting – Nationwide Permit 12 (Utility Activities)

Pipeline companies, utilities, engineers, builders and land developers, and other construction companies that rely on Nationwide Permit (NWP) 12 for utility line and trenching activities in and around potential wetland areas will need to carefully re-evaluate their ability to conduct work under this general permitting tool.  This is because on April 15, 2020, a federal district court vacated NWP 12 and determined that the U.S. Army Corps of Engineers (USACE) had not adequately considered impacts in issuing the 2017 permit under the federal Endangered Species Act.  As a result of this court ruling, pipeline and utility infrastructure projects that rely on NWP 12 may be impacted.

OSHA Sends Mixed Signals on Enforcement Related to COVID-19 and Employer Obligations

Over the past week, OSHA has issued three separate enforcement-related guidance memos to its regional offices and field staff regarding how and when to bring enforcement actions against employers for failing to protect worker health and safety amidst the COVID-19 pandemic. The first guidance covers workplace reporting and recording of injury and illnesses associated with exposure to COVID-19, while the other two OSHA guidance documents provide a roadmap to employers on how the agency will enforce violations of the OSH Act.

When a Phase I ESA is Not Enough to Claim the Superfund BFPP Defense

On March 30, 2020, the federal district court for the Southern District of Indiana weighed in on what it really takes for a property owner to claim the bona fide prospective purchaser (BFPP) defense to Superfund liability based on a Phase I Environmental Site Assessment (ESA). And in so doing, the court gave additional support to those of us who pay attention to not just whether a Phase I ESA report does or does not find a Recognized Environmental Condition (REC) at a property, but also when and how the environmental professional (EP) reached his or her conclusions.

Minnesota Pollution Control Agency Announces Regulatory Flexibility Amidst COVID-19 Impact

The Minnesota Pollution Control Agency (“MPCA”) has announced a process for regulated entities seeking regulatory flexibility that may have an unavoidable noncompliance situation that is directly due to an impact from the COVID-19 Peacetime Emergency, declared by Governor Walz in Emergency Executive Order 20-01.

COVID-19 Impacts on Environmental Issues in Kansas – KDHE Bureau of Environmental Remediation Issues Guidance

Consistent with Governor Kelly’s March 17, 2020, directive, the Kansas Department of Health and Environment (KDHE) offices are closed for the two weeks between March 23 and April 3, 2020, as part of the state’s response to COVID-19.  KDHE continues its essential functions and the Bureau of Environmental Remediation (BER) has provided several updates for the regulated community.  The agency has indicated it is uncertain that mail will be logged in daily and parties should expect some delay in communications. Electronic communications are preferred where possible.

Environmental Compliance Challenges Due to COVID-19 – EPA Announces Temporary Enforcement Policy in Response to Pandemic

Today the Environmental Protection Agency’s Enforcement and Compliance Assurance Program announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic.  The policy is available here and is retroactive to March 13, 2020.  EPA makes clear that the policy is temporary and the agency will give seven days’ notice before terminating the policy.

Missouri Department of Natural Resources Announces Flexibility in Response to COVID-19 Outbreak

At a Wednesday, March 25, conference Missouri Department of Natural Resources (MDNR) division director Ed Galbraith said MDNR will take a flexible approach to enforcing environmental requirements during the COVID-19 outbreak. Galbraith also said that MDNR has discontinued environmental inspections for the time being and that he understands EPA Region 7 has done so, as well.  MDNR is conducting certain field work, however.   

Missouri, Kansas, Illinois, and Communities Issue COVID-19 Orders to Require Social Distancing and to Stay at Home (Sometimes)

Over the weekend and Monday morning, Missouri and the major local jurisdictions that comprise the St. Louis and Kansas City metropolitan areas issued emergency orders directing business and individual responses to the COVID-19 (coronavirus) outbreak by imposing social distancing requirements. Kansas had issued a statewide order on March 17, and Illinois had issued a statewide order on Friday, March 20.  Generally speaking, these orders close schools except for distance learning, ban activities inside bars and restaurants, ban social gatherings of more than 10 people, and encourage social distancing. The Illinois state order and many of the city and county orders require businesses and organizations to close their workplaces and workers to stay home unless they are deemed “essential” or qualify for another exemption.  Some businesses have been obtaining favorable determinations that they are “essential” from their local jurisdictions on a case-by-case basis.  Grounds for exemptions can include food manufacturing and processing, manufacturing and supply chain services for other essential businesses, construction, services to help businesses comply with laws, and many others.

Coronavirus is a Recordable Illness According to OSHA

According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904.  This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job.  So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not.

Missouri Department of Natural Resources Struggles to Secure Hazardous Waste Program Funding

The Missouri Department of Natural Resources faces a potential funding shortfall for Missouri’s Hazardous Waste Program following the General Assembly’s March 4 disapproval of a stopgap funding measure. On that date, the Missouri House of Representatives adopted Senate Concurrent Resolution 38 disapproving an increase in Hazardous Waste Program fees previously passed by the Missouri Hazardous Waste Management Commission. The Missouri Senate had passed SCR 38 on February 24. Accordingly, the fee increases will not take effect.

Facilities Must Comply with New Release Reporting Rule for Accidental Releases Issued by Chemical Safety Board

Companies and facilities that experience an accidental release have a new regulation to consider for releases of regulated substances or extremely hazardous substances.  On February 21, 2020, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued its new final rule governing reporting of accidental releases subject to the Board’s investigatory jurisdiction.  The new rule requires the owner or operator of a stationary source to report to the CSB any accidental release resulting in a fatality, serious injury (defined as resulting in death or inpatient hospitalization), or substantial property damages (defined as damage of $1,000,000 or more).  A copy of the rule in today’s Federal Register is available here.

Environmental Audit Privilege and Immunity Now Available to Oklahoma Facilities

The Oklahoma Environmental, Health and Safety Audit Privilege Act is now effective as of November 1, 2019, and available to manufacturers and industrial businesses  in Oklahoma that undertake voluntary environmental audits, such as those companies involved in aircraft manufacturing, chemicals, oil and gas processing, plastics, cement, food and meat processing, and paper products .  Oklahoma is the 30th state, by EPA’s count, to enact an audit program, providing privilege and enforcement benefits to parties that voluntarily undertake an environmental audit, disclose the findings and conduct corrective actions.

OSHA Issues Enforcement Directives Targeting a Variety of Industry and Manufacturers

Effective October 1, 2019, Region VII OSHA (Kansas, Missouri, Nebraska, and Iowa) announced a combination of Regional Emphasis Programs, along with state-led local emphasis programs.

The Role of States in Environmental Enforcement – EPA Issues Final Policy Outlining State Responsibility

Continuing its focus on cooperative federalism under the current Administration, EPA issued its final policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work on July 11, 2019.  EPA’s guidance memorandum follows review of comments from the draft policy published in May 2019 and replaces the January 2018 interim guidance on enhancing partnerships.  EPA’s final policy expands and clarifies earlier direction on communication planning between EPA and its state counterparts with authorized or delegated programs under various federal statutes such as the federal Clean Air Act, Clean Water Act, and RCRA.

Missouri Proposes to Reduce Reporting Timeframe for Start-Up, Shutdown, and Malfunction Conditions

Facilities that own and operate air emissions sources in the State of Missouri, such as manufacturing plants, chemical plants, and similar industrial air sources, will want to take note of recent proposed changes to the notification obligations involving certain excess emission events.

Army Corps Seeks to Accelerate Wetlands Permitting with New Mitigation Bank Guidance

Mitigation bank credits may become more readily available to builders, developers and other permittees following new guidance issued in late February.  The U.S. Army Corps of Engineers issued Regulatory Guidance Letter 19-01, developed in collaboration with the U.S. Environmental Protection Agency, on February 22, 2019. (Available here)

A Phase I ESA Gone Awry Leads to Millions in Cleanup Liabilities — a Cautionary Tale for Property Transactions

Lenders, borrowers, purchasers, sellers, and even contractors sometimes get annoyed with environmental lawyers when we insist on reviewing Phase I Environmental Site Assessment (ESA) draft reports, looking at the underlying regulatory files, checking title reports, real property records, and contract terms, counting days to make sure that the Phase I report is not stale or expired at closing, and documenting which parties do, should, or do not have reliance rights under that report.   

Phase I Environmental Site Assessments: What You Need to Know to Close Your Deal

As someone who frequently helps businesses buy and sell commercial and industrial properties, I frequently encounter misunderstandings about Phase I Environmental Site Assessments (ESAs) and their role in a property transaction. Although not an exhaustive list, these 10 items are among the most important you should know about for your next property transaction.

Trump Administration EPA to Focus Criminal Enforcement on Significant and Egregious Violators, Citing 1994 “Devaney Memorandum”

A high-ranking Environmental Protection Agency (EPA) enforcement official in the Trump Administration recently cited a 1994 memorandum by Earl Devaney, then Director of EPA’s Office of Criminal Enforcement, as presenting guiding principles to select cases for criminal enforcement of environmental violations. The January 12, 1994, memorandum, “Exercise of Enforcement Discretion,” is often referred to as the “Devaney Memorandum,” and it is available at this link:  https://www.epa.gov/sites/production/files/documents/exercise.pdf. This may signal that criminal enforcement of environmental laws under the Trump Administration will be limited to situations in which there has been significant actual or threatened environmental harm and truly culpable conduct.

OSHA Issues New Guidance on Process Safety Management

OSHA recently published a guidance document to help petroleum refineries comply with OSHA’s Process Safety Management (PSM) standard, 29 CFR 1910.119, distilling lessons learned by OSHA over the past ten years from the Petroleum Refinery PSM National Emphasis Program (NEP).  The OSHA guidance serves as a road map for process safety professionals to understand specific areas that OSHA will focus on during a PSM audit and areas most likely for OSHA to find gaps in PSM programs.

Federal Court Says EPA Too Stringent on Recycling and Reclamation of Hazardous Secondary Materials

Companies that beneficially reuse hazardous secondary materials by recycling or reclaiming those materials rather than discarding them as hazardous waste need to be aware of a new federal court ruling that may provide additional flexibility in the reuse and recycling of those materials. In its July 7, 2017, opinion in Am. Petroleum Inst. v. EPA, No. 09-1038, slip op. (D.C. July 7, 2017), the U.S. Court of Appeals for the District of Columbia struck down two key elements of the EPA’s 2015 Final Rule aimed at revising EPA’s “Definition of Solid Waste”: Factor 4 of the legitimacy test (i.e., “toxics along for the ride”) and, in pertinent part, the Verified Recycler Exclusion pertaining to reclamation under RCRA.

Stormwater Runoff from Construction Activities Subject to New EPA 2017 General Permit

Construction companies, general contractors, developers, and property owners involved in land clearance and disturbance activities will want to take note of the new Stormwater Construction General Permit (“Construction General Permit”) issued by the United States Environmental Protection Agency (“EPA”) on February 17, 2017. As with earlier Construction General Permits, the 2017 permit applies to land clearance and disturbance activities greater that one acre and requires site operators to comply with best management practices (“BMPs”), effluent limits, and other permit requirements, including developing a Stormwater Pollution Prevention Plan (“SWPPP”).

EPA and OSHA Increase Civil Penalties – Days Before New Administration

In January 2017, both EPA and OSHA increased civil penalties for new enforcement cases. While the increases became effective just days before the new Administration took office, the increases are a result of Congressional action in 2015 to annually adjust civil penalties for inflation by January 15 of each new calendar year.

Retail and Consumer Product Hazardous Waste – Update on Reverse Distribution and Aerosol Cans by EPA

On September 12, 2016, EPA issued its “Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework.” The strategy document sets forth three actions the agency is expected to finalize in the short-term to help ease the RCRA burden on managing retail and consumer products that may trigger RCRA hazardous waste characteristics or RCRA listings once a decision to discard is made.

Avoiding Cleanup Liability for Industrial and Commercial Properties Under New Kansas Law

Effective July 1, 2016, buyers of industrial and commercial properties in Kansas may qualify for a Certificate of Environmental Liability Release (CELR) under the state’s new Contaminated Property Redevelopment Act. This liability release for pre-existing contamination is important for prospective purchasers of industrial and commercial properties by helping to facilitate those transactions and allow the buyer to avoid state cleanup responsibility. But not only buyers benefit, as sellers can also demonstrate a framework that allows the transaction to proceed and maximize the property value without the buyer or seller taking on unnecessary risk if the proper steps to obtain the CELR are followed.

New OSHA Silica Dust Rule to Impact Over 675,000 Workplaces, Biggest Impact on Construction Industry

On March 25, 2016, 81 Fed. Reg. 16286, OSHA issued a new final rulemaking to reduce silica dust exposure that will directly affect more than 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing. OSHA explains that silica dust exposure occurs in common workplace operations involving cutting, sawing, drilling, and crushing of concrete, brick, block, rock, and stone products (such as construction tasks), and operations using sand products (such as in glass manufacturing, foundries, sand blasting, and hydraulic fracturing).

EPA to Focus on RMP Chemical Accident Prevention and Safety, Issues Proposed Rule and Will Increase Enforcement

Businesses that store and use flammable and toxic chemicals that are regulated under EPA’s Risk Management Plan (RMP) Program at 40 CFR Part 68 need to be aware of recent actions by the U.S. Environmental Protection Agency aimed at curtailing chemical accidents and releases through new proposed regulations and also enforcement. Facilities potentially subject to EPA’s initiatives include chemical plants and refineries, POTWs that use chlorine as a disinfectant, as well as those companies that use and store bulk anhydrous ammonia as an industrial refrigerant (dairy operations, food and pharmaceutical manufacturing, cold storage warehousing) or as fertilizer (agricultural cooperatives, fertilizer distribution).

Environmental Enforcement and Crimes – EPA and DOJ Announce New Initiatives and How They Affect You

On February 18, 2016, the U.S. Environmental Protection Agency announced its new National Enforcement Initiatives aimed at protecting public health and national pollution challenges for FY 2017-2019. These new initiatives, coupled with other recent significant announcements by the U.S. Department of Justice regarding a new emphasis for individual accountability for corporate malfeasance (“Yates Memo”) along with an expanded focus on DOJ’s and OSHA’s worker endangerment initiative, underscore a new paradigm shift for businesses and individuals in how EPA and the DOJ intend to enforce the nation’s environmental, health and safety (“EHS”) laws over the coming years.

OSHA to Focus Enforcement at Manufacturing Facilities in Kansas, Missouri, and Nebraska

Earlier this month, OSHA Region VII announced that it was launching a new Region-wide Local Emphasis Program in Kansas, Missouri, and Nebraska designed to address certain industries viewed by OSHA as high-hazard manufacturing industries because the injury and illness rates exceed the average for the private sector.

EPA Releases National Enforcement Initiatives

Beginning October 1, 2016, the U.S. Environmental Protection Agency (EPA) will target its enforcement efforts in seven different focused areas, including three areas designed to protect water quality, two initiatives aimed at reducing toxic air pollutants and reducing air pollution, an initiative to reduce accidental chemical releases from industrial facilities, and an enforcement initiative geared at energy extraction activities.

EPA Revamps Voluntary Self-Disclosure Audit Policy

Businesses and companies seeking to qualify for penalty mitigation and relief by submitting voluntary self-disclosures under EPA’s Audit Policy need to be aware of significant changes and modifications that took effect in December 2015.

Criminal Prosecution of Worker Safety Violations – New DOJ Initiative to Increase Criminal Enforcement of OSHA Matters

On December 17, 2015, the U.S. Department of Justice (DOJ) announced a major new initiative to increase the number of criminal charges in worker endangerment and worker safety cases. Although the DOJ and the Occupational Safety and Health Administration (OSHA) have had a worker endangerment initiative for a number of years, the new changes are intended to bolster the likelihood and number of criminal prosecutions which historically have languished, according to DOJ, due to the OSH Act’s misdemeanor criminal provisions.

Home Builder’s Stormwater Violations at Construction Sites Result in $1 Million Enforcement Settlement

A residential home builder, Garden Homes, has agreed to resolve alleged stormwater violations with the EPA and U.S. Department of Justice, according to a June 8, 2015, Federal Register Notice. The settlement involves a civil penalty of $225,000 and a Supplemental Environmental Project valued at $780,000 involving the acquisition of 108 acres of land for preservation.

Warehouse and Distribution Center Fined $3 Million for Anhydrous Ammonia Releases from its Industrial Refrigeration System

On June 2, 2015, the U.S. EPA and DOJ announced a $3 million dollar settlement with Millard Refrigerated Services, a company specializing in refrigeration and distribution services to retail, food service, and food distribution companies. The settlement resolves alleged violations of the EPA’s Risk Management Program, the Clean Air Act’s General Duty Clause, and CERCLA and EPCRA release reporting requirements stemming from three releases of the industrial refrigerant anhydrous ammonia from the facility’s Mobile Marine Terminal in Alabama. Among the release incidents was an August 2010 release involving hospitalization and medical treatment of individuals who were offsite working on decontaminating ships in response to the 2010 oil spill in the Gulf of Mexico.

EPA Revises its Supplemental Environmental Project – SEP Policy

On March 10, 2015, EPA issued a new revised 2015 Update to its Supplemental Environmental Project (SEP) Policy, thereby superseding prior SEP policies.

Top 10 Things You Need to Know About Phase I Environmental Site Assessments

In a recent Midwest Real Estate News guest column, Spencer Fane Partner Andrew Brought shared his knowledge and insight on Phase I Environmental Site Assessments (ESAs) with readers. The article outlines the role and common misconceptions of environmental site assessments in property transactions and provides 10 important facts on ESAs as well as their impact on buyers and sellers involved in real estate transactions.

A Sham, a Waste? EPA’s New Recycling and Hazardous Waste Rules Finalized

Last week, on January 13, 2015, EPA issued its new “Definition of Solid Waste” Final Rule in the Federal Register at 80 Fed. Reg. 1694. This new rulemaking will have significant impacts regarding how secondary hazardous materials are recycled and exempted from the hazardous waste regulations. Unless challenged (and by all accounts it appears at least certain aspects may be litigated based on initial comments by various industrial sectors) the rule becomes effective on July 13, 2015, where EPA is the authorized implementing agency (Iowa, Alaska, American Samoa, and Puerto Rico and the U.S. Virgin Islands). Because RCRA is a federally delegated program, other states will have to adopt the more stringent aspects of the rule discussed below.

New OSHA Reporting and Recordkeeping Rules Take Effect

On January 1, 2015, new OSHA regulations took effect that broaden the scope of work-related injuries that employers must now report to OSHA.

Environmental Compliance Certifications: What Your Clients Need to Know Before They Sign

On September 9, 2014, Andrew Brought of Spencer Fane will be one of the panelists in the ABA’s Presentation Environmental Compliance Certifications: What Your Clients Need to Know Before They Sign.

Supreme Court Strikes Down Key Aspects of EPA’s Greenhouse Gas Regulations, But Upholds Other Provisions

Earlier today, June 23, 2014, the United States Supreme Court dealt a blow to EPA’s current approach to regulating greenhouse gas emissions (GHGs) through its air permitting program for new or expanding stationary sources. Utility Air Regulatory Group v. Environmental Protection Agency. No. 12-1146, ___ U.S. ___, June 23, 1014. The Court said it left intact EPA’s ability to regulate 83 percent of such GHG emissions, compared to the 86 percent EPA championed under its approach. Nevertheless, in its ruling the Court undercut key foundations of EPA’s current GHG regulatory approach. This ruling will require EPA to re-think many aspects of its approach to GHGs and will give opponents increased leverage in the upcoming discussions.

2005 Phase I ESA Will No Longer Satisfy All Appropriate Inquiries Under EPA Proposed Rule

On June 17, 2014, EPA issued a proposed rule in the Federal Register, 79 Fed. Reg. 34480, proposing to amend the standards and practices for satisfying All Appropriate Inquiries (AAI) under CERCLA. In particular, EPA is proposing to remove references to the 2005 Phase I ESA Standard ASTM E1527-05 as satisfying AAI.