In the January 9 Federal Register, the Council on Environmental Quality (CEQ) published updated Guidance on Consideration of Greenhouse Gas Emissions and Climate Change for the assessment and disclosure of climate impacts related to agency environmental reviews conducted pursuant to the National Environmental Policy Act (NEPA). The NEPA review focus of the guidance is federal agency permitting for clean energy and other infrastructure projects and is designed to provide more clarity and predictability for conducting agency reviews. The guidance highlights existing tools and best practices.
01.17.2023 |
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01.13.2023 |
Hoping to finalize a stable rule that the regulated community can trust, the Environmental Protection Agency (EPA) and the Corps of Engineers (COE) have promulgated a new rule defining “waters of the United States” (WOTUS). The new rule is the latest episode in a series worthy of an Oscar nomination for best documentary that began in 2015 during the Obama administration. See earlier rules at 80 FR 37054 (June 29, 2015); 84 FR 56626 (October 22, 2019); 85 FR 22250 (April 21, 2020). The agencies describe this latest iteration as “a clear and reasonable definition of waters of the United States” that is designed to “reduce the uncertainty from constantly changing regulatory definitions that has harmed communities and our nation’s waters.” |
12.20.2022 |
Following an extended review process, the U.S. Environmental Protection Agency (EPA) on Thursday, December 15 approved the updated Phase I Standard issued by the ASTM work group in late 2021. This is an important development for property purchasers seeking to qualify for defenses to liability under federal and (some) state Superfund laws. |
11.16.2022 |
Clients will have to adapt to the certainty of increased regulation at the international, federal, state and local levels to meet the aggressive carbon-reduction goals set by governmental authorities. John Doerr in his recent book “Speed & Scale, An Action Plan for Solving our Climate Crisis Now” summarizes the actions he submits that politicians, industries and investors must undertake to reach net-zero by 2050. He begins his blueprint for action with an admonition from his 15-year-old daughter voiced at a dinner he hosted in 2006 after a screening of An Inconvenient Truth: “Dad, your generation created this problem. You better fix it.” |
10.10.2022 |
Following up on President Biden’s 2020 Climate Change Executive Order 14008 issued in his first week in office, EPA Administrator Michael Regan issued a policy statement on May 26, 2021 that directed all EPA offices to update their 2014 Climate Implementation Plans to: |
09.08.2022 |
A series of recent criminal prosecutions stemming from workplace fatalities in connection with OSHA’s worker safety laws underscore the Justice Department’s willingness to charge OSH Act crimes, even in the absence of other Title 18 offenses or other criminal charges. |
08.23.2022 |
First came the whistleblowers’ letter from Colorado state agency staff to the Environmental Protection Agency’s (EPA) Office of the Inspector General (OIG). The EPA’s OIG referred the matter to EPA’s Region 8 office for review. Then came the Troutman Report requisitioned by the Colorado Attorney General. |
08.08.2022 |
The compromise – the Inflation Reduction Act of 2022 – was announced on July 27, 2022, by Senate Majority Leader Chuck Schumer (D-New York) and Sen. Joe Manchin (D-West Virginia), and by a 51:50 party-line vote survived the August 6-7 “vote-a-rama” gauntlet in the full Senate. Calling it the “single biggest climate investment in U.S. history,” with a goal of reducing carbon emissions in the U.S. by up to 40% by 2030, the legislative summary says the bill will: |
07.08.2022 |
For companies in the supply chain for consumer products sold in California, the California law known as Proposition 65 is well worth considering. Private enforcement of Prop. 65 is so widespread that many companies have been forced to learn about this law. For those still unaware of Prop. 65 and those aware but hoping they will not be targeted, taking proactive steps to address the law is likely the most economical path forward, both financially and in terms of company resource drain and stress. |
07.01.2022 |
On June 30, 2022, the United States Supreme Court addressed Section 111(d) of the Clean Air Act and reversed a D.C. Circuit Court ruling that had struck down the Affordable Clean Energy Rule (ACE rule) (84 Fed. Reg. 32520) promulgated by the Environmental Protection Agency (EPA) during the Trump administration. See the Supreme Court decision here. |
06.20.2022 |
Drinking water systems that supply tap water need to begin preparing for how they will meet new National Drinking Water Standards set for proposal in Fall 2022 based on EPA’s recently issued Interim Health Advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) near zero. On June 15, 2022, EPA announced a new Interim Lifetime Health Advisory for PFOA at 0.000000000000004 g/L (4 parts per quadrillion) and for PFOS at 0.000000000000020 g/L (20 parts per quadrillion) in tap water. EPA’s new advisory level is thousands of times more stringent than EPA’s 2016 Health Advisory of PFOA and PFOS at 70 parts per trillion and the Agency for Toxic Substances and Disease Registry’s current risk levels for PFOA: 78 ppt (adult) and 21 ppt (child), and PFOS: 52 ppt (adult) and 14 ppt (child). And the new levels are significantly below any current laboratory detection or quantification limits, currently around 2 ppt. Consequently, it defies logic how EPA expects drinking water supply systems to even currently assess PFAS levels in relation to the newly released levels. |
05.04.2022 |
On April 20, 2022, in the first leg of a two-phase process, the Council on Environmental Quality (CEQ) issued its final rule amending its regulations for implementing the National Environmental Policy Act (NEPA). To be effective May 20, 2022, the amendments restore provisions that were in effect for forty-two years before being modified in 2020 by the Trump administration. These “Phase 1” changes focus on the (a) purpose and need of a proposed action, (b) an agency’s NEPA procedures for implementing the rules, and (c) the definition of “impacts’ and “effects.” |
04.11.2022 |
With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA. On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting. |
03.21.2022 |
Publicly traded companies will be required to disclose climate-related risks to investors under a newly announced U.S. Securities and Exchange Commission (SEC) proposed rule. On March 21, 2022, the SEC announced proposed rule amendments regarding disclosure of climate-related risks and impacts from greenhouse gas emissions (GHG). Citing the growing demand from investors regarding environmental, social, and governance (ESG) issues, and what the SEC calls “fragmented and inconsistent” disclosure requirements, the SEC’s proposed rule amendments will be issued in the Federal Register in the coming weeks for public comment. |
03.17.2022 |
On March 8, 2022, the U.S. EPA issued a memorandum to guide equitable funding decisions to support the agency’s purpose in providing flexibility to local water treatment providers and increasing investments in disadvantaged communities. Water treatment providers, municipalities, and other entities seeking to obtain and procure infrastructure funding will want to carefully review and consider EPA’s guidance. |
03.10.2022 |
The EPA and Colorado Partnership For Environmental JusticeColorado focuses on environmental justice as a core priority. In 2021, Governor Polis signed the Environmental Justice Act (HB21-1266) into law, and subsequently appointed members to Colorado’s first Environmental Justice Advisory Board. The Colorado Department of Public Health and Environment (CDPHE) then launched the new Environmental Justice Action Task Force and the agency created a new Environmental Justice Unit to reduce environmental health disparities for communities of color and low-income communities across Colorado. |
03.03.2022 |
Weld County Lacks Standing to Challenge New Oil and Gas Air RulesOn February 24, 2022, a division of the Colorado Court of Appeals upheld a district court’s dismissal of a challenge to regulations issued by the Colorado Air Quality Control Commission (“Commission”) which address oil and gas operations. In Bd. of Cnty. Comm’rs v. Ryan, the appellate court addressed whether Weld County had standing to seek judicial review of the air quality rules. See opinion here. |
02.28.2022 |
Companies that manage chemicals in warehousing, distribution, and logistics facilities remain a high-priority enforcement focus of the U.S. Environmental Protection Agency, as reflected in the recently issued Enforcement Alert. Citing the agency’s current National Compliance Initiative entitled “Reducing Risks of Accidental Releases at Industrial and Chemical Facilities,” the Enforcement Alert reminds businesses that process, formulate, blend, re-package, store, transport, and market chemical products must adhere to a variety of federal EPA rules and the consequences for the failure to do so. |
01.31.2022 |
In a January 5, 2022, press release, the U.S. Army Corps of Engineers announced it will not make permitting decisions based on certain Approved Jurisdictional Determinations (AJDs) rendered under the 2020 Navigable Waters Protection Rule or NWPR, which was the Trump Administration’s regulatory definition of Waters of the United States (often referred to as “WOTUS”). AJDs provide the Corps’ project-based regulatory determinations whether certain development and construction projects impact WOTUS and, therefore, require Clean Water Act 404 permits to authorize such impacts. Because the NWPR was thought to reduce the number and extent of water bodies subject to Clean Water Act regulation and the durability of the NWPR was uncertain, the conventional wisdom was to request AJDs while the NWPR was in effect, allowing developers to lock in a more favorable AJD and thereby reduce potential constraints and mitigation work required for development activities impacting WOTUS. However, as a result of the Corps’ change of direction, general contractors, property owners, developers, and related construction companies that followed the conventional wisdom will need to pay careful attention for any projects for which a 404 permit has not been issued. |
01.13.2022 |
Big PictureToday the United States Supreme Court issued a decision staying implementation and enforcement of the Emergency Temporary Standard (“ETS”) issued by the federal Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to adopt policies mandating COVID-19 vaccination and testing, at least while legal challenges to the ETS proceed through lower courts. This means that for now, employers covered by the federal ETS are not required to comply with it. |
12.30.2021 |
On December 27, 2021, OSHA issued a statement to address the confusion surrounding the status of the Healthcare Emergency Temporary Standard (the “Healthcare ETS”) implemented on June 21, 2021. The confusion arose because the Healthcare ETS was a temporary standard that was intended to be effective until it was replaced by a permanent standard. However, the OSH Act provides that the permanent standard should be promulgated within six (6) months from the adoption of the temporary standard. This means that OSHA needed to implement a permanent standard to replace the Healthcare ETS by December 20, 2021. This did not occur. |
12.23.2021 |
Late on Wednesday, December 22, the United States Supreme Court announced that it will hear oral arguments on January 7, 2022, on several consolidated cases challenging the Emergency Temporary Standard (“ETS”) issued by the Occupational Health and Safety Administration (OSHA) requiring that employers with 100 or more employees adopt vaccine mandate and testing policies, as well as the vaccine mandate imposed on certain health care facilities under the Interim Rule issued by the Centers for Medicare & Medicaid Services (CMS). |
12.20.2021 |
Employers with 100 or more employees have until January 10, 2022, to implement the obligations required under the mandatory vaccinate or test requirements in OSHA’s Emergency Temporary Standard issued on November 4, 2021, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021). Even though the ETS is now effective, the agency is granting a short time period for companies to satisfy the requirements. |
11.18.2021 |
EPA’s Proposed Rule – Back to the Pre-2015 ProgramIn June 2021, premised on the agencies’ determination that the Trump Administration’s Navigable Waters Protection Rule (finalized April 21, 2020) significantly reduced clean water protections, the EPA and the Department of the Army announced their intent to revise the definition of Waters of the United States (WOTUS). |
11.15.2021 |
It All Depends on Translating Commitments Into ActionIt ran a day longer than expected, and, no surprise, the results are mixed. Indeed, the nearly 200 countries represented actually put off to next year the negotiation of enhanced emissions targets (COP27 is scheduled for November 8 – 20, 2022 in Sharm El-Sheikh, Egypt). Summarizing is difficult; actually a bit painful in light of the many reports summarized in my earlier blog. So, how to address it here? |
11.15.2021 |
On November 12, 2021, the Fifth Circuit Court of Appeals issued a decision in which it reaffirmed its prior temporary injunction against implementation or enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard (the “ETS”) mandating COVID-19 vaccination and testing. The November 12 decision reaffirmed a prior stay issued on November 6th and found that the ETS was both overbroad and under-inclusive. The court found the ETS overbroad because it failed to consider that COVID-19 is “more dangerous to some employees than to other employees.” BST Holdings, L.L.C. et al. v. Occupational Safety and Health Administration, et al., No. 21-60845, slip. op at 13. The court found it underinclusive because even the most vulnerable workers would draw no protection from the ETS if the company employs 99 employees or fewer. Id. at 15. It further ordered the agency to “take no steps to implement or enforce” the ETS until further court order. |
11.08.2021 |
On November 6, 2021, the Fifth Circuit issued a temporary injunction on OSHA’s ETS for employers with 100 or more employees. The Fifth Circuit’s Order is brief citing “grave statutory and constitutional issues” with the ETS. The Court ordered the government to respond to the motion for a permanent injunction by 5:00 p.m. today, November 8, 2021. The petitioners have until tomorrow, November 9, 2021, at 5:00 p.m. to provide a reply to the government’s response. |
11.05.2021 |
On November 4, 2021, OSHA issued its 490-page document setting out its Emergency Temporary Standard for COVID-19 Vaccination and Testing, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021). The ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy by December 5, 2021, with all covered employees vaccinated by no later than January 4, 2022. Alternatively, the ETS permits covered employers to instead adopt a policy requiring employees to either get vaccinated or elect, in lieu of vaccination, to wear a face covering at work and undergo weekly COVID-19 testing. The ETS imposes many additional safety protocols, recordkeeping, and disclosure requirements for covered employers and employees beyond mandatory vaccination and testing. |
11.04.2021 |
OSHA issued the long-awaited ETS requiring employers with 100 or more employees to mandate that employees either get the COVID-19 vaccine or undergo weekly COVID-19 testing. The Spencer Fane Labor and Employment Attorneys are analyzing the ETS and will be providing a more in-depth client alert shortly, in addition to hosting an educational WorkSmarts™ webinar on Wednesday, November 10 from 2:00pm-3:00pm CT. In the meantime, here are a few highlights: |
10.29.2021 |
Disappointing Updated TargetsOn October 28, 2021, China submitted updated nationally determined contributions (NDCs) to the UN Framework Convention on Climate Change (UNFCCC) to fight climate change. NDCs are non-binding plans submitted to the United Nations as part of the 2015 Paris Agreement. The disappointment comes because the updates offer essentially nothing new; and indeed show some backtracking. |
10.27.2021 |
The 2021 United Nations Climate Change Conference, also known as COP26, is the 26th United Nations Climate Change conference and will be held in Glasgow, Scotland, running from October 31 to November 12, 2021. It is the third meeting of the parties to the 2015 Paris Agreement (CMA3). The parties are expected to embrace enhanced international commitments to slow climate change. Originally planned for November 2020, the event was postponed because of the COVID-19 pandemic. |
10.12.2021 |
23 Major Federal Agencies Release Their PlansOn October 7, 2021, twenty-three federal agencies released plans describing how they will integrate climate-readiness across agency missions and programs and bolster the resilience of federal assets. The plans are available here. |
10.07.2021 |
CEQ Targets Trump Administration NEPA Rule ChangesOn October 6, 2021, the White House Council on Environmental Quality (CEQ) announced its intention to reverse the Trump Administration’s revisions to environmental reviews under the National Environmental Policy Act (NEPA). The announcement states that the action will restore essential safeguards for the protection of public health and the environment. |
09.30.2021 |
On Tuesday, September 29, 2021, the U.S. Department of Interior (“DOI”) announced the revocation of the Trump Administration’s regulation that had limited the scope of the Migratory Bird Treaty Act (“MBTA”). The revocation rule will go into effect 60 days after publication in the Federal Register on October 4, 2021. |
09.29.2021 |
Report to Colorado Attorney General Details Failings of Agency Permitting ProceduresAn earlier Spencer Fane blog post in May detailed the whistleblowers’ allegations that were contained in their letter to the EPA’s Office of the Inspector General (“OIG”). The allegations caused the state’s Attorney General, Phil Weiser, to hire outside counsel to investigate. The Troutman Pepper report, released last week on September 22, concluded that fraud (or an intent to circumvent the law) on the part of the agency was not an issue; but, the permitting process needs improvement lest continuing “confusion” taints the process. |
09.01.2021 |
Companies in a wide variety of industries, including agriculture, manufacturing, mining, power generation, and utilities, that manage wastewater effluent in surface impoundments, lagoons, land application, septic systems, underground injection, or similar methods will want to evaluate the recent court decision in the County of Maui case on remand from the Supreme Court and how it could significantly impact wastewater permitting in the future. The case is the first federal district court to work through the “functional equivalent” analysis for federal jurisdiction over groundwater set forth by the U.S. Supreme Court in its April 2020 ruling involving the very same parties and operative facts. |
08.11.2021 |
OSHA’s Kansas City Area Office recently cited three employers for allegedly exposing workers and residents to asbestos hazards and failing to ensure safe removal of the known carcinogen during a flooring replacement project at a Monett, Missouri, nursing facility. Proposed penalties for the three employers totaled approximately $240,000. |
08.02.2021 |
Companies that store hazardous waste liquids with organics or other volatile and light vapors should ensure that the tanks, containers, and equipment used at those facilities satisfy the RCRA Organic Air Emission Standards in Subparts AA, BB, and CC under 40 CFR Parts 264 and 265. Over the past month, EPA has announced at least five separate penalty enforcement actions for air emission violations under the Subpart BB and Subpart CC standards. EPA promulgated the RCRA hazardous waste air emission standards to reduce the release of air emissions and organic vapors into the atmosphere from hazardous waste tanks, containers, equipment, and process vents, to prevent ozone precursors and other air toxics. |
07.23.2021 |
The Minnesota Court of Appeals ruled this week that a mine’s “synthetic minor” air emissions permit failed to address contentions attributed to its parent company’s public securities filing that some said suggested the mine might not comply with the permit’s output restrictions. The court ruled the Minnesota Pollution Control Agency (“MPCA”) must make additional factual findings to address those contentions and issue a revised decision to support its conclusion that PolyMet Mining Inc. (“PolyMet”) is anticipated to comply with the terms of its synthetic minor source permit. |
06.11.2021 |
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”). This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U). The text of the ETS, as submitted to the Office of the Federal Register, is available here. OSHA also launched a website with resources regarding the ETS. |
05.17.2021 |
Three air quality modeling staff ask the EPA Inspector General to investigateIn a letter to the U.S. Environmental Protection Agency (EPA) dated March 30, 2021, three self-styled “whistle blowers” who serve as air quality modelers working in the Air Pollution Control Division (APCD) of the Colorado Department of Public Health and Environment (CDPHE) asked EPA’s Inspector General, Sean W. O’Donnell, to open an investigation into policy decisions made by the agency. See letter here. |
05.13.2021 |
At Issue? Impacts on 10 million acres of public landsOn May 11, 2021, the Bureau of Land Management (BLM) announced it will take another look at its greater sage grouse conservation plans and the agency’s process related to the possible withdrawal of up to 10 million acres of habitat from mineral location and entry. See the BLM announcement here. The agency’s long-delayed announcement comes after two federal court judges ordered the agency to re-think its plans: (1) a May 2020 federal Court’s decision in Montana vacating oil and gas lease sales on BLM lands in Wyoming and Montana [see opinion here], and (2) a February 2021 federal Court’s decision in Idaho that vacated the Trump administration’s decision to stop withdrawal of millions of acres of public lands for mineral development [see opinion here]. The focus of the courts’ opinions is BLM’s management plans that were designed to support sagebrush ecosystems on which sage grouse rely. |
04.16.2021 |
The Prospective Claims: States “Impermissibly” Impede the Export of Wyoming Coal and Force Closure of Coal-Fired Power PlantsColorado (as only one example of many states) is working to reduce its reliance on coal and other fossil fuels for its electricity and transportation needs. Colorado plans to transition to 100 percent clean electricity generation by 2040 and rapidly expand the electrification of vehicles. |
04.16.2021 |
Manufacturers, suppliers, retailers, and other entities in supply chains for consumer products sold in California might soon need to provide warnings regarding certain per- and polyfluoroalkyl substances (PFAS) in their products. California’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced its intent to further regulate and study certain per- and polyfluoroalkyl substances under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Proposition 65 prohibits companies from knowingly exposing California consumers to chemicals “known to cause cancer or reproductive toxicity” (i.e., “listed chemicals”) in consumer products without first providing a “clear and reasonable warning.” (Although not the focus of this article, Proposition 65 also addresses occupational and environmental exposure to listed chemicals.) |
03.11.2021 |
Harris County Steps up Inspections and Enforcement of Industrial Permitting and Fire Code ComplianceBusinesses that own and operate industrial facilities in Harris County, Texas, should be aware of recent efforts by the Harris County Fire Marshal’s Office (HCFMO) to ensure that these facilities have obtained proper permits and certificates of compliance for construction and development projects for energy infrastructure and related operations. Failure to obtain the necessary permits and certificates of compliance presents the attendant risk of an enforcement case with the issuance of a notice of violation and potential shutdown of all operations. |
03.04.2021 |
Although other states and parties tried, Colorado was the only state that succeeded in persuading a U.S. District Court Judge to enter a preliminary injunction against enforcement (in Colorado only) of the new waters of the United States (WOTUS) rule which was published nearly a year ago, i.e., April 21, 2021. After being on appeal for several months, the Tenth Circuit Court of Appeals expressed its displeasure with that ruling. In State of Colorado v. U.S. Environmental Protection Agency et al., case number 20-1238, Judge Baldock, in his March 2, 2021 opinion, was direct and to the point: |
02.23.2021 |
EPA on February 22, 2021, announced new steps to address PFAS (per- and polyfluoroalkyl substances) in drinking water. These actions will collect new data on the presence of PFAS in drinking water and could lead EPA to establish maximum contaminant levels, commonly known as MCLs, for these substances under the Safe Drinking Water Act (SDWA). |
02.15.2021 |
On December 16, 2020, a cold storage warehouse and ice manufacturing facility in East Providence, Rhode Island, entered into a guilty plea with the Justice Department for a “knowing” criminal violation of Clean Air Act section 112(r)(7), 42 USC 7412(r)(7), in connection with EPA’s Chemical Accident Prevention Program and requirement to submit a risk management plan (RMP) under 40 CFR Part 68. The facility used a refrigeration system to manufacture and store ice and other frozen products, with 19,000 pounds of anhydrous ammonia in the refrigeration process. |
02.11.2021 |
Manufacturing facilities, industrial operations, and other businesses subject to environmental statutes and regulations will want to evaluate a new EPA document when considering whether and how to voluntarily disclose environmental violations to the federal government. EPA recently published a 22-page guidance document, dated January 2021, clarifying EPA’s Audit Policy. EPA’s Audit Policy consists of incentives the agency offers to companies that voluntarily discover their own violations of environmental laws and regulations and disclose the violations to EPA. When all of the nine eligibility conditions in the Audit Policy are met, the Audit Policy allows for up to complete elimination of the gravity-based portion of civil penalties for environmental non-compliance, and a recommendation of no criminal prosecution. (EPA penalties may also include amounts to address the economic benefit of non-compliance, which the Audit Policy does not address.) The Audit Policy itself is memorialized in Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 65 Fed. Reg. 19618 (Apr. 11, 2000) (an update to the original 1995 document establishing the Audit Policy). |
02.02.2021 |
On Friday, January 29, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a new comprehensive worker safety guidance to protect workers against COVID-19, entitled: “Protecting Workers – Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” |
01.22.2021 |
On January 21, 2021, President Biden issued the “Executive Order on Protecting Worker Health and Safety,” available here, along with numerous other executive orders addressing COVID-19. The order directs the Occupational Safety and Health Administration (OSHA) to:
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01.19.2021 |
Fines and penalties issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) are set to increase in 2021 as a result of annual inflationary adjustments. |
11.24.2020 |
How is Colorado Dealing with “Gap” Waters?The scope of federal jurisdiction under the Clean Water Act remains perplexing, particularly now that Colorado is the only state in the nation where the Navigable Water Protection Rule did not take effect June 22, 2020. In the context of a lengthy “stakeholder” process, on November 20, 2020, the Colorado Department of Public Health and Environment (CDPHE) issued a White Paper addressing its regulatory options in light of the new federal WOTUS rule. Construction companies, developers, and other businesses seeking to permit activities around wetlands, ephemeral waters, and intermittent streams in Colorado would benefit from reviewing this comprehensive discussion of the multitude of dilemmas Colorado and others states face in light of the new rule. |
11.23.2020 |
Chevron, Auer, and Now Voight Deference?On November 20, 2020, the Eighth Circuit Court of Appeals jumped headlong into the Chevron, and Auer deference realm. The issue: can a Clean Air Act permittee rely on a state agency’s prevention of significant deterioration (PSD) determination? And should a Court “defer” to the state agency’s determination to assist in the interpretation of an “ambiguous” environmental program requirement? Voight v. Coyote Creek Mining Company (No. 18-2705, 8th Circuit Court of Appeals). |
11.18.2020 |
Judge Contreras’s Second Opinion Blasts the Bureau of Land Management for Sloppy Environmental AnalysisLast year, in a 60-page opinion issued in March 2019, U.S. District Judge Rudolph Contreras stopped the Bureau of Land Management (BLM) from leasing oil and gas on over 500 square miles of federal lands in Wyoming. He began his opinion by stating: “Climate change, and humanity’s ability to combat it, are increasingly prominent topics of public discourse. This case concerns the attention the government must give climate change when taking action that may increase its effects.” |
11.17.2020 |
Despite widespread commentary regarding the lack of COVID-specific regulatory rules in the workplace, the Occupational Safety and Health Administration (OSHA) continues to cite employers for a wide variety of health and safety violations arising from COVID-related investigations. On November 6, 2020, OSHA issued guidance summarizing which safety standards the federal agency most frequently cites during COVID-related inspections: Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment (PPE), and the General Duty Clause. |
10.29.2020 |
Chemical plant owners and operators need to carefully review a recent federal appellate court decision that could substantially expand process safety management (PSM) considerations and related chemical safety and accidental release regulatory requirements under EPA’s Risk Management Plan (RMP) program. |
09.28.2020 |
If your business sells or distributes products or devices by claiming that the products work against or kill COVID-19, beware that such claims are subject to regulatory oversight by a variety of governmental agencies, such as the Environmental Protection Agency, Federal Trade Commission, and the Food & Drug Administration. Unsuspecting companies in the sale and distribution of these products, such as disinfectants, sanitizers, or cleaners,[1] must ensure their labels and marketing claims satisfy regulatory requirements. |
09.21.2020 |
In late 2018, California passed a new law that will, in the near future, present sweeping changes to the pharmaceutical industry and certain medical device manufacturers. The new law amends the existing California Integrated Waste Management Act and is expected to be a boom for medical waste disposal companies who stand to obtain significantly more business. While the law was signed by the California Governor nearly two years ago, the regulations will go into effect in a few months (by January 1, 2021). The original bill, dubbed the “California Sharps and Drug Takeback Bill”, requires a manufacturer of covered drugs or home-generated sharps waste, to offer safe disposal methods for their customers’ used and unused products. The law has potentially sweeping affect because it encompasses all covered drugs and home generated sharps waste that are sold or offered for sale in California. |
08.27.2020 |
On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) announced significant changes to the disclosure requirements for publicly traded companies under Regulation S-K. Businesses that receive monetary sanctions from the EPA and other governmental authorities involving violations of environmental laws will want to carefully review the new Item 103 Legal Proceedings rules as it may substantially alter disclosure obligations. |
08.07.2020 |
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. |
07.27.2020 |
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. |
07.07.2020 |
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. |
06.29.2020 |
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. |
06.23.2020 |
California Judge Denies Nationwide InjunctionThis is an updated version of a previous blog to include recent developments. Something to do during lock-down: track the twists and turns of the multiple court challenges to the Waters of the U.S. (WOTUS) rule; a fascinating pass-time. |
05.28.2020 |
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.” |
05.28.2020 |
This is an updated version of a previous blog to include recent developments. On May 22, 2020, Colorado joined the surge of lawsuits challenging the Waters of the United States (“WOTUS”) rule issued in April by the Trump administration. See the link below to the Colorado lawsuit filed in federal court in Colorado as well as links to other similar lawsuits in other jurisdictions. |
05.20.2020 |
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. |
05.15.2020 |
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. |
05.07.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITORIn County of San Mateo, California v. Peabody Energy Corp. (In re Peabody Energy Corp.), the Eighth Circuit (Judges Arnold, Gruender and Shepherd) agreed that the Bankruptcy Court (Judge Schermer) did not abuse its discretion when it held that litigation against Peabody by various California municipalities was barred by the terms of Peabody’s confirmed chapter 11 plan of reorganization. In so doing, the Court placed particular weight on the presumed intent of the plan drafters in defining exceptions from discharge – a rule of interpretation that may prove significant. |
05.05.2020 |
On May 1, 2020 in the Northern District of California, 17 States, the District of Columbia and New York City joined the menagerie suing to prevent implementation of the “waters of the United States” (“WOTUS”) rule. The Plaintiffs include the states of California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin, the Commonwealths of Massachusetts and Virginia, the North Carolina Department of Environmental Quality, the District of Columbia, and the City of New York. |
04.23.2020 |
US Supreme Court Says Superfund Statute Allows Landowners to Seek Additional Remediation in State Court, but Delays Additional WorkOn 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. |
04.22.2020 |
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. |
04.20.2020 |
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. |
04.16.2020 |
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. |
04.10.2020 |
Following on the March 19 internal memorandum from the Office of Land and Emergency Management (available here), and the March 26 COVID-19 Enforcement Discretion Policy from the Office of Enforcement and Compliance Assurance (see here for the Policy and Spencer Fane’s earlier alert), EPA today (April 10) issued guidance on field decisions for parties managing cleanups under CERCLA, RCRA, and other remediation programs. EPA’s interim guidance is available here. |
04.08.2020 |
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. |
03.31.2020 |
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. |
03.27.2020 |
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. |
03.26.2020 |
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. |
03.25.2020 |
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. |
03.23.2020 |
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. |
03.10.2020 |
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. |
03.04.2020 |
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. |
02.21.2020 |
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. |
01.24.2020 |
On January 23, 2020, the Environmental Protection Agency (EPA) and the Department of the Army (Corps) finalized anticipated revisions to the Navigable Waters Protection Rule defining the scope of waters subject to federal regulation under the Clean Water Act. The revisions follow the dictates of President Trump’s February 28, 2017 Executive Order 13778: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” |
12.24.2019 |
The Second Trip to the Colorado Supreme CourtNo other state has a provision in its constitution like the Colorado Taxpayer Bill of Rights (“TABOR”). The TABOR measure amended Article X of the state’s constitution and restricts tax revenues and spending at all levels of government. The provision prevents tax increases without voter approval and prohibits state and local government from spending revenues collected under existing tax rates without voter approval if revenues grow faster that the rate of inflation and population growth. Tax revenues in excess of the TABOR limit must be refunded to taxpayers. The impact of the provision has been significant. Since 1992, tax authorities have refunded over $2 billion to the taxpayers. |
12.23.2019 |
On December 11, the U.S. Chemical Safety and Hazard Investigation Board (CSB) proposed a rule requiring that companies swiftly provide the CSB notice of accidental chemical releases sufficient to trigger a CSB investigation, to help the CSB make deployment decisions and to more rapidly respond to release incidents. |
12.17.2019 |
New “Serious” Classification for Nonattainment For OzoneOn December 16, 2019, the U.S. Environmental Protection Agency (EPA) announced a final rule to reclassify the Denver Metro/North Front Range ozone nonattainment area from Moderate to Serious nonattainment under the Clean Air Act. The area covered embraces all of Adams, Arapahoe, Boulder, Denver, Douglas, and Jefferson counties as well as the southern portions of Larimer and Weld counties. |
11.07.2019 |
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. |
10.28.2019 |
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. |
10.22.2019 |
Short-term risks of exposure can include headaches, dizziness, and respiratory, skin and eye irritationBuilding on an earlier assessment released in February 2017, the Colorado Department of Public Health and Environmental released a state-funded study on October 17, 2019 titled: “Human Health Risk Assessment for Oil & Gas Operations in Colorado.” A peer-reviewed article summarizing the study was published in the Journal of the Air and Waste Management Association. |
10.22.2019 |
Companies nationwide that sell foods containing the chemical acrylamide to California consumers may find their regulatory burden lightened in the future. On October 7, 2019, the California Chamber of Commerce (CalChamber) filed suit against the California Attorney General in the Eastern District of California to prevent the state from enforcing Proposition 65 warning requirements for foods containing acrylamide. CalChamber’s Complaint asks the court to declare that the Proposition 65 requirement of carcinogen warnings for foods containing acrylamide constitutes false and misleading compelled speech in violation of the First Amendment, arguing that acrylamide in food has not been shown to be a human carcinogen. The Complaint also seeks an order prohibiting the State of California and private citizen enforcers from enforcing Proposition 65 warning requirements for foods containing acrylamide. |
10.16.2019 |
A Court Order Halting Agency Actions Would Prevent Any Oil and Gas Permitting for Months While the Commission Promulgates Revised RegulationsOn October 8, 2019, a citizens group based in Broomfield, Colorado, filed suit in Denver District Court requesting a Court order for an immediate stay of all actions by the Colorado Oil and Gas Conservation Commission (“COGCC”) involving “permitting of any drilling, pooling, and spacing units until the COGCC rulemaking is completed.” |
10.07.2019 |
On October 1, 2019, OSHA implemented a new OSHA Weighting System to guide its prioritization and evaluation of workplace safety inspections for fiscal year 2020. Under OSHA’s outgoing enforcement weighting system, initiated in fiscal year 2015, OSHA heavily based its prioritization and evaluation of inspections on the time taken to complete an inspection. |
08.12.2019 |
A proposed rule issued August 9th appears to move in a different direction from the approach to cooperative federalism promoted by recent EPA initiatives. EPA’s new Water Quality Certification rule seeks to restrict the authority of states and authorized tribal agencies – at least with respect to certain actions under the Clean Water Act. This is a rule to watch for utilities and businesses seeking licenses from the Federal Energy Regulatory Commission, and for developers who need Clean Water Act Section 404 permits from the Army Corps of Engineers. |
07.30.2019 |
Case of First Impression Overturns Mined Land Reclamation Board RulingOn July 25, 2019, the Colorado Court of Appeals reversed a ruling of the Colorado Mined Land Reclamation Board (“MLRB” or “agency”) which had authorized a second period of temporary cessation for a uranium mine. The Court in Information Network for Responsible Mining, Earthworks, and Sheep Mountain Alliance v. Colorado Mined Land Reclamation Board was asked to determine if the agency properly authorized a “second period of temporary cessation” which would allow the mining permit issued by the MLRB to remain in effect. |
07.15.2019 |
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. |
07.02.2019 |
Affected by a local government just compensation action? Your remedies have now changed significantly. The Supreme Court on June 21, 2019 overturned 35 years of precedent. In Knick v. Township of Scott, Pennsylvania the Court held that you can now take your federal takings claims pursuant to 42 U.S.C. § 1983 directly to federal court without exhausting state court remedies. |
06.11.2019 |
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. |
05.01.2019 |
After years of studies, Congressional pressure, and on-the-ground experience with the American Burying Beetle, the U.S. Fish and Wildlife Service proposed downgrading the beetle’s status from “Endangered” to “Threatened.” In addition to this move, Fish and Wildlife has proposed a rule that would tailor protections that are necessary for the beetle to recover under section 4(d) of the Endangered Species Act. |
03.22.2019 |
The Department of the Interior recently announced six new Records of Decision that amend Resource Management Plans for the Greater Sage-Grouse. |
03.05.2019 |
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) |
01.29.2019 |
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. |
01.28.2019 |
On January 23, 2019, Wildgrass Oil and Gas Committee (reportedly an anti-fracking group but also an organization that includes mineral owners in the Wildgrass subdivision in Broomfield, Colorado), filed suit in federal court in Denver challenging, on federal constitutional grounds, that portion of the Colorado Oil and Gas Conservation Act (C.R.S. 34-60-116) (the “Act”) that allows the Commission to “force pool” the development of oil and gas resources. |
01.24.2019 |
There are several online resources available to track the regulatory activities of the current federal administration, including various federal government agency websites. The two sites which I and others often turn to for comprehensive and easy-to-use online access for tracking the current state of federal deregulatory efforts are the sites produced and maintained by the law schools at Harvard College and New York University. |
01.14.2019 |
In a unanimous decision which resolved more than five years of dispute, the Colorado Supreme Court on January 14, 2019 upheld the decision of the Colorado Oil and Gas Commission (COGCC) which had refused to engage in rulemaking proposed by environmental groups. Led by the so-called teenage activist Xiuhtezcatl (pronounced Shoe-Tez-Caht) Martinez, the activists proposed a rule that would have conditioned all new oil and gas development on a finding of no cumulative adverse impacts to public health and the environment. Responding to the rulemaking petition which was originally submitted in 2013, the COGCC said the rulemaking was beyond its statutory authority; on appeal, the district court agreed with the agency; and then the Court of Appeals, in a split decision, reversed. |
11.05.2018 |
Beginning October 16, 2018, employers with high injury and illness rates can expect more frequent OSHA inspections in connection with the resurrection of the agency’s Site-Specific Targeting (SST) Program. OSHA will use the SST Program to prioritize employer facilities and establishments for health and safety inspections in the coming year. |
09.24.2018 |
On September 5, 2018, EPA issued a draft guidance document announcing a shift of the term “adjacent” in the context of the Clean Air Act’s New Source Review (NSR) and title V operating permit programs which may benefit industrial air sources. This interpretation would focus EPA’s attention on physical proximity of facilities when making source determinations, rejecting EPA’s past practice of considering “functional interrelatedness.” |
08.17.2018 |
On August 16, the Colorado Air Quality Control Commission set a hearing to consider establishing a new Regulation Number 20 to adopt specific provisions of the California low emission vehicle (LEV) rule for model year 2022 and newer light and medium duty vehicles. The Division’s proposed rule will not include a Zero Emissions Vehicle (ZEV) mandate and has no impact on heavy-duty vehicles or non-road (construction and agricultural) equipment. |
08.10.2018 |
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. |
08.02.2018 |
A recent analysis by the Colorado Oil and Gas Conservation Commission (“COGCC”) shows that increasing the current regulatory setback of 500 feet to the 2500-foot setback proposed in Initiative # 97 would prevent oil and gas development on 85% of the non-federal land surface in the state. |
07.26.2018 |
All companies in supply chains for products sold in California need to be aware of the law known as California’s Proposition 65. This is especially true because significant changes to Proposition 65 requirements go into effect on August 30, 2018, increasing potential liability. |
07.20.2018 |
On Wednesday, July 18, 2018, Governor Hickenlooper of Colorado issued an Executive Order directing the Colorado Oil and Gas Commission (COGCC) to act to “plug, remediate, and reclaim” orphaned oil and gas wells and sites. Of the over 50,000 oil and gas wells in the state, the COGCC is currently tracking 262 orphaned wells and 373 associated well sites that require remediation and reclamation. |
07.12.2018 |
The U.S. is projected to produce more crude oil than any other nation, including Saudi Arabia and Russia. The July 10, 2018 forecast from the U.S. Energy Information Administration (EIA) predicts that, in 2019, U.S. crude oil production will grow to 11.8 million barrels a day. |
06.21.2018 |
On June 11, 2018, the U.S. District Court of the Southern District of Georgia issued a preliminary injunction preventing implementation of the U.S. Environmental Protection Agency’s 2015 Waters of the United States (WOTUS) rule in 11 states including Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin. The court held that if the WOTUS rule became effective the states would suffer irreparable harm in both a “loss of sovereignty and unrecoverable monetary losses.” |
04.11.2018 |
About the only thing that stakeholders agree on is that the risk assessment saga in Colorado means one thing – more study is needed. On March 27, 2018, the latest in a series of health risk studies was published by the Colorado School of Public Health at the University of Colorado Medical Campus. Using air emissions data taken from within the 500 foot regulatory setback requirement for homes near wells, the study concludes that people living in close proximity to oil and gas wells are subject to an increased risk of developing cancer. |
04.10.2018 |
In an unpublished opinion on March 21, 2018, the Ninth Circuit Court of Appeals affirmed the trial court’s dismissal of a lawsuit citing the application of CERCLA’s petroleum exclusion. The Court held that the site investigation at a former gas station did NOT identify anything other than petroleum or fractions thereof. Consequently, the Plaintiff did not plausibly allege any CERCLA “hazardous substances” were present at the site. The case was dismissed. |
04.04.2018 |
On March 23, 2018, the President signed into law the BUILD Act of 2018, which significantly clarifies the potential scope of cleanup liability for tenants and state and local governments under the federal Superfund law. Now, a tenant at an industrial or manufacturing site can, under appropriate circumstances, claim the “bona fide prospective purchaser” (BFPP) defense to Superfund liability and escape what would otherwise be strict, joint, and several owner/operator liability when leasing previously-contaminated property. |
04.03.2018 |
On April 2, 2018, the EPA announced the results of its updated Midterm Evaluation (MTE) determination related to greenhouse gas (GHG) emissions standards for cars and light trucks for model years 2022-2025. The agency stated that the current standards are not appropriate, and that it will work with the National Highway Traffic Safety Administration to set a notice and comment rulemaking to set new standards. |
03.28.2018 |
Hazardous Waste Generators, Transporters, and TSDFs Should Plan Now for EPA’s 2018 e-Manifest SystemAuthorized by Congress in 2012, the EPA’s Electronic Manifest System (e-Manifest) will become effective on June 30, 2018. When they register, generators, transporters, and receivers of hazardous wastes will be able to use this system to facilitate the electronic transmission of the uniform hazardous waste manifest form. States must adopt the provisions of the final rule in order to enforce them under state law and to maintain manifest program consistency. |
03.23.2018 |
On March 22, 2018, the Colorado Court of Appeals held that the Colorado Oil and Gas Conservation Commission’s authority to undertake unannounced, warrantless inspections (i.e., administrative searches) at oil and gas sites does NOT violate the U.S. or Colorado constitutions. |
03.06.2018 |
House Bill 1071, if enacted as written, will obviate the need for the Colorado Supreme Court to resolve the dilemma caused by the Colorado Court of Appeals opinion in the Martinez case. As described in earlier Spencer Fane posts, that appellate decision effectively elevated the protection of public health and the environment over the interests of mineral rights owners and developers. The issue before the Colorado Supreme Court is whether the current statute dictates that the Colorado Oil & Gas Conservation Commission (COGCC) implement a statutorily directed balancing act without giving priority to any particular interest. |
02.16.2018 |
On February 13, 2018, the Colorado Oil and Gas Conservation Commission approved new rules to require the industry to track the location of oil and gas pipelines. The new rules stem from an explosion in Firestone, Colorado caused by a leaking pipeline that destroyed a house and killed two people on April 17, 2017. That disaster triggered a massive public outcry, directives from the Governor, and now significant revisions to state regulations. |
02.07.2018 |
On January 29, 2018 the Colorado Supreme Court agreed to hear the appeal of the Martinez case. The state’s high court will decide whether, in the agency’s review of oil and gas permit applications, the Colorado Oil and Gas Conservation Commission (“COGCC”) must elevate “public health and the environment” over other factors identified in the agency’s organic statute. |
02.01.2018 |
Recently, EPA issued an Interim OECA Guidance on EPA and state roles on managing enforcement and compliance assistance. See, Interim OECA Guidance on Enhancing Regional—State Planning and Communication on Compliance Assurance Work in Authorized States. While EPA is seeking to emphasize cooperative federalism in modifying the emphasis of the 1986 revised policy on state/EPA enforcement agreements, as provided in the first footnote of the Guidance, the policy issued on January 22, 2018, appears to make the states the primary enforcer of environmental laws and provides a secondary role for EPA in that regard. |
01.24.2018 |
In January 2018, both EPA and OSHA increased civil penalties for new enforcement cases. These increases are required by the Federal Civil Penalty Inflation Adjustment Act of 2015 (Inflationary Adjustment Act), which directs federal agencies to annually adjust civil penalties for inflation by January 15 of each new calendar year in order to “maintain the deterrent effect of civil penalties by translating originally enacted statutory civil penalty amounts to today’s dollars.” 83 Fed. Reg. 1190, at 1191 (January 10, 2018). |
12.22.2017 |
A citizens group cleared the first major hurdle to obtaining a declaratory judgment compelling the U.S. Environmental Protection Agency to consider whether to regulate the fluoridation of drinking water supplies under Toxic Substances Control Act (TSCA)’s Section 6(a) when a federal judge denied the EPA’s motion to dismiss the citizen group’s petition for such a declaration. Consequently, the citizen suit will proceed in evaluating whether EPA must initiate proceedings to decide if it should issue a rule under Section 6 to impose regulatory controls on fluoridation of drinking water. |
12.19.2017 |
December 15, 2017, was the deadline for employers to electronically submit information from work-related injuries and illnesses under OSHA’s Electronic Reporting Rule. Nevertheless, OSHA announced on December 18, 2017, that it will continue accepting electronic submittals until midnight on December 31, 2017. |
11.29.2017 |
OSHA has delayed the December 1, 2017, deadline for the Electronic Reporting Rule until December 15, 2017. This rule requires a wide range of establishments to electronically submit injury and illness information from their OSHA Forms 300A. The deadline extension was announced via a November 24, 2017, OSHA notice in the Federal Register. |
11.28.2017 |
The United States Environmental Protection Agency and United States Army Corps of Engineers last week took another step toward rolling back their 2015 proposed definition of “waters of the United States” (WOTUS). On November 22, 2017, the agencies published in the Federal Register a new proposed regulation to delay the effective date of the 2015 WOTUS rule until two years from the date of final action on the new proposal. The agencies seek comments until December 13, 2017, on their new November 22 proposal, so stakeholders who wish to comment have limited time to do so. |
11.21.2017 |
Employers have until December 1, 2017, to electronically submit injury and illness information from their 2016 Summary of Work-Related Injuries and Illnesses (Form 300A) under OSHA’s 2016 Improve Tracking of Workplace Injuries and Illnesses Rule (“Electronic Reporting Rule” or “the Rule”). |
11.20.2017 |
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. |
11.09.2017 |
On October 25, 2017, the EPA announced that it had reached a settlement with Macy’s Retail Holding, Inc. (Macy’s) in connection with alleged violations of RCRA associated with retail goods and items that were improperly disposed of at department store locations. Under the settlement with EPA, Macy’s agrees to correct the violations, develop a training program for its retailers, conduct third-party audits of eleven of its largest facilities, pay $375,000 in civil penalties, and comply with other requirements within one year. |
10.24.2017 |
On October 16, 2017, EPA Administrator Pruitt issued a directive, requiring EPA to immediately cease a practice known as “sue and settle,” in response to concerns that EPA has lately been defending against suits brought by environmental organizations with insufficient vigor. The “sue and settle” concept is not defined in relation to a specific political party or view of environmental protection. Rather, it is the concept that political parties in power sometimes half-heartedly defend against lawsuits, when the relief sought by such suits is actually favored by the party in power. |
09.11.2017 |
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. |
07.27.2017 |
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. |
07.11.2017 |
Purchasers of rural and forested land need to be aware of a recent change in EPA’s environmental due diligence rules. On June 20, 2017, EPA published a Direct Final Rule in the Federal Register, amending the All Appropriate Inquiries (AAI) Rule, 40 CFR Part 312, to reflect 2016 updates to ASTM E2247, a standard for Phase I investigations on rural and forested land. |
06.19.2017 |
On May 22, 2017, EPA finalized a new rule establishing subsurface intrusion as a new component of the Hazard Ranking System (HRS), the principal mechanism for placing contaminated sites on the National Priorities List (NPL). |
06.08.2017 |
As stated here in an earlier post, the Martinez decision, if upheld by the Supreme Court, has major implications for all fossil fuel as well as hardrock mineral development in the state of Colorado. |
05.19.2017 |
On May 18, 2017, the Colorado Attorney General filed an appeal with the Colorado Supreme Court seeking to overturn the recent 2-1 decision of the Colorado Court of Appeals which arguably conflicts with the long-standing interpretations embraced by the Colorado Oil and Gas Conservation Commission (“OGCC”) related to its organic statute. |
05.18.2017 |
EPA Administrator Scott Pruitt recently redelegated to the EPA Administrator the authority to select $50 million plus site cleanup remedies under CERCLA Records of Decision or RODs. Some years ago, such authority had been delegated to the Regional Administrators in each EPA Region. |
03.12.2017 |
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”). |
02.05.2017 |
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. |
12.11.2016 |
On November 28, 2016, EPA published the final version of the Hazardous Waste Generator Improvements Rule (the Rule) in the Federal Register. Promulgated under the Resource Conservation and Recovery Act (RCRA), the Rule updates EPA’s regulations governing generators of hazardous waste, most of which EPA promulgated in the 1980s. The Rule significantly revises the hazardous waste generator requirements. |
09.20.2016 |
On August 2, EPA issued a guidance document encouraging parties to opt for “greener cleanup activities” when conducting CERCLA response actions, to reduce the environmental costs associated with these cleanups. The guidance document defines “greener cleanup activities” as “practices or technologies that reduce or mitigate the environmental impacts of CERCLA removal and remedial actions, while meeting regulatory and other cleanup requirements.” Examples include generating renewable energy on-site, using energy-efficient equipment, and choosing land management methods that do not require mowing. The guidance document builds on EPA’s 2009 Principles for Greener Cleanups, a general statement of intention to manage CERCLA cleanups in a more environmentally sustainable manner. |
09.18.2016 |
Retail and Consumer Product Hazardous Waste – Update on Reverse Distribution and Aerosol Cans by EPAOn 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. |
08.21.2016 |
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. |
03.27.2016 |
New OSHA Silica Dust Rule to Impact Over 675,000 Workplaces, Biggest Impact on Construction IndustryOn 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). |
03.26.2016 |
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). |
02.27.2016 |
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. |
02.27.2016 |
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. |
01.02.2016 |
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. |
12.19.2015 |
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. |
07.01.2015 |
On June 29, 2015, the United States Supreme Court announced its decision in Michigan v. Environmental Protection Agency, holding that EPA unreasonably interpreted a provision of the Clean Air Act regarding the regulation of power plants under the EPA’s Mercury and Air Toxics Standard (MATS) (also referred to as the Utility MACT). |
06.25.2015 |
At long last, after operating under the draft Vapor Intrusion Guidance of 2002 for almost 13 years, EPA finally issued final vapor intrusion guidances on June 11, 2015, a specific guidance for petroleum vapor intrusion at leaking underground storage tank sites, and a more general technical guide for assessing and mitigating the vapor intrusion pathway at chlorinated solvent sites. (Technical Guide). In response to criticism that EPA did not subject the guidances to the public scrutiny of the administrative rule-making process, EPA allowed for a longer public comment period than is customary for guidances. Additionally, both vapor intrusion guidances were the subject of extensive discussions between EPA, various sister agencies, private industry, environmentalists, and the White House. |
06.13.2015 |
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. |
06.06.2015 |
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. |
06.06.2015 |
On June 4, 2015, by a 12-1 vote, the City Council of Kansas City, Missouri, passed the Energy Empowerment Ordinance (No. 150299) that will require building owners to disclose energy and water usage. |
04.22.2015 |
Lone Pine orders have become an increasingly common case management tool employed by trial courts to help streamline proceedings for defendants and the court while maintaining equity for the plaintiffs. Lone Pine orders are most often used in cases involving complex issues and multiple plaintiffs, but are becoming more widely employed in a greater variety of cases. |
04.14.2015 |
On April 10, 2015, the U.S. Court of Appeals for the Eighth Circuit gave a northwestern Minnesota peat mining operation something the company wanted very much — judicial review of a wetlands jurisdictional decision issued by the U.S. Army Corps of Engineers. Hawkes Co., Inc., et. al v. U.S. Army Corps of Engineers, slip op. No. 13-3067 (8th Cir. April 10, 2015). In so doing, the Eighth Circuit built on the U.S. Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), which had made Clean Water Act administrative orders subject to court scrutiny, and continued the Eighth Circuit’s focus on curtailing what it sees as government agency overreaching, as recently expressed in Iowa League of Cities v. EPA, 711 F.3d 844, 868 (8th Cir. 2013). |
04.07.2015 |
On March 10, 2015, EPA issued a new revised 2015 Update to its Supplemental Environmental Project (SEP) Policy, thereby superseding prior SEP policies. |
03.30.2015 |
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. |
02.25.2015 |
In a recent January 2015 Memorandum to EPA’s Regional Enforcement Managers from Cynthia Giles, EPA Assistant Administrator for Enforcement, EPA is touting its Next Generation Compliance strategy as “an integrated strategy” intended to “bring together the best thinking from inside and outside EPA.” |
01.19.2015 |
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. |
01.04.2015 |
On January 1, 2015, new OSHA regulations took effect that broaden the scope of work-related injuries that employers must now report to OSHA. |
09.03.2014 |
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. |
07.25.2014 |
In Kansas City, EPA Administrator Seeks to Clarify Proposed “Waters of the United States” RegulationOn July 10, EPA Administrator Gina McCarthy spoke to the Agricultural Business Council of Kansas City in an attempt to ease concerns over the Administration’s proposed rule to clarify the reach of the Clean Water Act (CWA). The proposed rule, issued jointly by EPA and the Army Corps of Engineers, seeks to specify by regulation the scope of the CWA following the 2006 Supreme Court decision in Rapanos v. United States. The competing tests for CWA jurisdiction issued by the Court in Rapanos have complicated efforts to determine when smaller waters, wetlands, and ephemeral streams are subject to CWA jurisdiction and would require government permits before they can be impacted. In response to mounting criticism of the proposed rule from a number of stakeholders, McCarthy tried to reassure the audience, saying, “We don’t believe that we are expanding jurisdiction.” |
07.11.2014 |
In another “end run” around the state’s General Assembly, proponents of greater restrictions on oil and gas exploration in Colorado are again employing the initiative process, this time to authorize local governments to enact laws within their geographic boundaries more restrictive than state law, and even go so far as to potentially ban all exploration activity. Alongside a companion ballot language challenge allowing for more restrictive statewide setback requirements (the subject of a prior article, (Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking), the Colorado Supreme Court ruled that two ballot initiatives permitting a state constitutional amendment allowing for more restrictive local control did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013). |
07.10.2014 |
In an “end run” effort around the state legislature, proponents of more restrictive oil and gas well setback requirements in Colorado are employing the initiative process to achieve more restrictive minimum setbacks than present state law permits. On June 30th, the Colorado Supreme Court ruled that three potential ballot initiatives permitting a state constitutional amendment requiring the more restrictive setbacks did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013). |
07.08.2014 |
According to a new study in the journal, Science, an increase in the number of earthquakes in central Oklahoma likely arises from the use of underground injection wells to dispose of treated wastewater from oil and gas fracking operations. The study, funded in part by the U.S. Geological Survey (“USGS”)and the National Science Foundation (“NSF”), focused on Oklahoma earthquakes and injection well practices. The research was led by Cornell University and included researchers from the University of Colorado, Boulder. |
06.23.2014 |
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. |
06.19.2014 |
The Ventura County Star reported on June 17th that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (the “Division”), has modified its proposed hydraulic fracturing regulations mandated by last year’s Senate Bill 4, requiring well operators to conduct real-time seismic monitoring. The modified regulations specify that they apply both to offshore and on shore oil drilling operations. Most drilling off the California coast, however, occurs in federal waters that are beyond the reach of state regulations. |
06.18.2014 |
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. |
06.10.2014 |
Earlier today, June 9, 2014, the United States Supreme Court handed down its decision in CTS Corp. v. Waldburger, et al., slip op. No. 13–339 (U.S., 6-9-2014). Reversing the Fourth Circuit, the Supreme Court held that the Superfund law’s preemption of state statutes of limitation for personal injury or property damage claims does not apply to state statutes of repose. Not every state has such a statute on the books, but for those that do, this may provide an additional shield for defendants, and an additional hurdle for plaintiffs. |
03.04.2014 |
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. |
04.15.2013 |
On April 4, 2013, the Fourth Circuit handed down its much-awaited decision about what a bona fide prospective purchaser (BFPP) of contaminated property must do to retain the Brownfields defense to Superfund liability. In PCS Nitrogen Inc. v. Ashley II of Charleston LLC, No. 11-2087, slip op. at 31 (4th Cir. April 4, 2013), the Court held that a property redeveloper, Ashley II, was liable as a current owner potentially responsible party (PRP) for soil contamination at the former phosphate fertilizer plant despite its “all appropriate inquiry” pre-purchase investigation of past environmental conditions at the facility. Ashley II knew that old sumps at the property contained contaminated water, yet for years did nothing to clean out or close the sumps. This failure to stop a continuing release violated the post-purchase “due care” or “reasonable steps” requirements of the BFPP defense, and negated its applicability to Ashley II. |
12.07.2012 |
In an effort to encourage brownfield site redevelopment and renewable energy development on contaminated sites, on December 5, 2012, EPA issued a guidance document designed to clarify the scope of enforcement discretion the agency will provide to tenants who undertake steps to avoid liability under CERCLA’s Bona Fide Prospective Purchaser (“BFPP”) provisions. In conjunction with the guidance memorandum, EPA also issued three new model comfort/status letters for lessees involved in renewable energy development on contaminated property. |
11.21.2012 |
Businesses that own contaminated property in Missouri, such as brownfield sites and former industrial locations, can avail themselves of Missouri’s Environmental Covenant Act (MoECA), RSMo Section 260.1000 et seq., 10 CSR 25-18.010(18), to expedite cleanup and, if site conditions allow, beneficial reuse of those properties. In particular, property owners can record an environmental covenant on their property that restricts certain land uses and site activities to minimize exposure to impacted soils and groundwater. When coupled with a risk-based cleanup approach, an environmental covenant can present significant advantages to a property owner. Most notably, a company can clean up a site based on human health and environmental risks associated with appropriately tailored uses of the property, such as cleaning up an industrial property to satisfy industrial standards as opposed to residential standards. The most common types of activity and use limitations found in environmental covenants include:
Environmental covenants like other property interests are recorded in a property’s chain of title to provide notice to prospective buyers of the specific activity and use limitations imposed by the restrictions. Missouri, along with more than 20 other states, has adopted a version of the Uniform Environmental Covenants Act. The Missouri Department of Natural Resources (MDNR) has a “model” environmental covenant used by the agency in situations where MDNR is the sole overseeing Department and a second model covenant in which both EPA and MDNR are the overseeing agencies. The provisions in the new model Environmental Covenant differ only somewhat from the provisions in the prior model Environmental Covenant, but the new model serves as a reminder that Missouri has a robust risk-based cleanup program when it is neither pragmatic nor cost-effective to clean up sites to residential levels. The use of Missouri’s risk-based program should be carefully evaluated considering site-specific circumstances. |