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OSHA Announces Site-Specific Targeting Program to Focus Inspection Priorities at Establishments with High Injury and Illness Rates

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.

New EPA Guidance Proposed on Clean Air Act Single Source Determinations – Industrial Air Emission Sources May Benefit

On September 5, 2018, EPA issued a draft guidance document announcing a shift of the term “adjacent” in the context of the Clean Air Act’s New Source Review (NSR) and title V operating permit programs which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.”

Air Quality – Colorado to Join 13 States That Have Adopted California’s LEV Requirements

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.

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

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

Oil and Gas Development Would Be Blocked on 85% of Non-Federal Land in Colorado

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. 

Upcoming Proposition 65 Changes May Catch Companies Without Warning

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.

Colorado Orders Safety Fixes at Orphaned Oil and Gas Wells

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. 

U.S. Will Produce More Crude Oil Than Any Other Country in 2019, According to EIA

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.

Federal Court Halts EPA’s Waters of the United States (WOTUS) Rule in 11 States

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.” 

Air Emissions From Oil and Gas Wells Health Risks Analyzed – More Study Needed

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.

The Superfund Petroleum Exclusion – Alive and Well in the Ninth Circuit

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.

Congress Enacts Redevelopment-Friendly Changes to the Superfund Law, and Tenants and State and Local Governments Gain Clarity on How to Avoid Cleanup Liability

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. 

EPA Will Revise Emission Standards For Cars and Light Trucks for Model Years 2022-2025

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.

Hazardous Waste Generators, Transporters, and TSDFs Should Plan Now for EPA’s 2018 e-Manifest System

Authorized 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.

Colorado Court of Appeals Upholds Warrantless Inspections at Oil and Gas Sites

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.

Colorado Legislation Could Halt Oil and Gas Production

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.

Tougher Oil & Gas Rules in Colorado Set to Take Effect

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. 

Colorado Supreme Court Will Address Oil and Gas Development in its Review of the Martinez Case

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.

EPA Asks States to the Take the Lead in Environmental Enforcement

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.

EPA and OSHA Increase Civil Penalties

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).

Is Fluoridated Drinking Water a Risk? A Federal Court Allows Citizen Suit to Proceed Against EPA Concerning TSCA Oversight

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.

It’s Not Too Late to Complete OSHA Electronic Reporting

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.

Deadline for OSHA Electronic Reporting Rule Delayed Until December 15, 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.

EPA and Corps of Engineers Take Another Step to Roll Back “Waters of the United States” Definition and Issue a New Proposed Rule

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.

Deadline for OSHA Electronic Reporting Rule Fast Approaching

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”).

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

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

Major Department Chain’s Improper Disposal of Household Goods and Consumer Products Results in Significant RCRA Penalty from EPA

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.

EPA Administrator Directs EPA to Cease its “Sue and Settle” Practice

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.

OSHA Issues New Guidance on Process Safety Management

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

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

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

CERCLA Due Diligence Requirements Revised to Reflect Updated Phase I Standard for Forested and Rural Land

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.

Subsurface Intrusion now a Factor for NPL Listings According to New EPA Final Rule

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).

Denver Post Supports AG’s Appeal of Martinez Case to Colorado Supreme Court

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.

The Future of Oil and Gas Development in Colorado – Appeal by Attorney General of the Martinez Case Raises the Stakes

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.

EPA Administrator Consolidates Authority to Select Costly CERCLA Remedies

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.

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

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

EPA and OSHA Increase Civil Penalties – Days Before New Administration

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

EPA Issues Final Hazardous Waste Generator Improvements Rule

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.

EPA Issues Guidance Encouraging Greener Cleanup Activities

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.

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

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

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

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

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

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

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

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

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

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

EPA Releases National Enforcement Initiatives

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

EPA Revamps Voluntary Self-Disclosure Audit Policy

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

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

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

EPA’s Air Rules Must Consider Costs, Says U.S. Supreme Court

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).

EPA Issues Final Vapor Intrusion Guidance and Declares EPA, not OSHA, in Charge of Indoor Air Quality at the Workplace

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.

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

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

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

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

Kansas City Passes Ordinance Requiring Building Owners to Disclose Energy and Water Usage

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.

Fracking Claims Get Their Day in Court as Lone Pine Orders Axed in Colorado

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.

Want immediate judicial review of a Corps of Engineers’ wetlands jurisdictional determination? Pick a property within the Eighth Circuit (Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska)

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).

EPA Revises its Supplemental Environmental Project – SEP Policy

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

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

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

Next Generation Compliance—EPA Strategy to Delegate Enforcement to Third Parties?

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.” 

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

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

New OSHA Reporting and Recordkeeping Rules Take Effect

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

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

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

In Kansas City, EPA Administrator Seeks to Clarify Proposed “Waters of the United States” Regulation

On 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.”

Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking, Part Two

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).

Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking

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).

New Study in the Journal Science Affirms Underground Injection from Fracking Causes Earthquakes, While Industry Cautions Reserving Judgment

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.

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

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

California Modifies Proposed Fracking Regulations, Mandating Seismic Monitoring

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.

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

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

CERCLA Will Not Save a Toxic Tort Claim which is Barred by a State Statute of Repose

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.

Stormwater Violations at Concrete Ready-Mix Plants, Enforcement Nets More than $4 Million

EPA Region 2 and the U.S. Justice Department have resolved a stormwater enforcement case against CEMEX, associated with stormwater violations at 18 ready-mix concrete plants. The settlement will result in a civil penalty of $360,000, compliance upgrades of approximately $1.8 million, and a supplemental environmental project (SEP) involving the conservation of more than 400 acres of land valued at approximately $2.36 million.

EPA Initiates Advanced Notice of Proposed Rulemaking (“ANPRM”) re Transparency in Reporting Fracking Chemicals

On May 19th, EPA published an ANPRM in the Federal Register requiring the reporting and analyzing of chemicals used in hydraulic fracturing (“fracking”). EPA had delayed regulatory action for several years as environmental groups debated whether more transparent public disclosure was critical to ensure public safety, while industry representatives responded that regulation within their borders should be left to the states. The move largely comes as a result of insistence by Earthjustice and 114 other environmental groups, arising from a petition seeking greater federal involvement filed more than three years earlier. 

Renovation Contractor’s Lead-Paint Violations at Three Homes Lead to $500,000 Penalty and Comprehensive Compliance Program

The U.S. Justice Department, EPA, and Lowe’s Home Centers, LLC, have entered into a Consent Decree to resolve alleged violations of the EPA’s Lead Renovation, Repair, and Painting Program requirements, according to an April 24, 2014 notice in the Federal Register. The allegations, associated with violations at three home sites, require Lowe’s to pay a $500,000 civil penalty and implement a comprehensive compliance program.

Texas Jury Awards Ranching Family Nearly $3 Million Dollars for Fracking Damages, While National Groundwater Association Position Paper Declares Fracking Safe

In a first–of-its-kind-ruling, the LA Times reported yesterday that a six-person Texas jury awarded almost $3,000,000 against a natural gas company whose drilling, a ranching family contended, caused debilitating sickness, memory problems, killed pets and livestock, and forced them out of their home. Other landowners have sued over fracking claims and drilling, but reached settlements. However, this appears to be the first reported case which has proceeded to judgment.

EPA “Pre-Rulemaking” Notice Sent to OMB re Reporting Chemicals Used in Fracking

Recently the Environmental Protection Agency (“EPA”) sent a “prerule” notice to the White House Office of Management and Budget (“OMB”) in an initial effort to determine what reporting might be required for chemicals used in hydraulic fracturing.  OMB’s Office of Information and Regulatory Affairs announced last month that it had received an “advance notice of proposed rulemaking” from EPA concerning the potential regulation of chemicals used in “fracking.” According to the Unified Agenda listing for this rulemaking (RIN: 2070-AJ93), this action was initiated in response to a petition filed under section 21 of the Toxic Substances Control Act (“TSCA”).

Colorado Supreme Court Agrees to Hear Reversal of “Lone Pine” Fracking Order

On April 7th the Colorado Supreme Court, en banc, granted a petition for writ of certiorari filed by Antero Resources, agreeing to review the decision of the Colorado Court of Appeals which reversed the trial court’s grant of a “Lone Pine” order. No. 13 SC 576, Court of Appeals Case No. 12 CA 1251, Antero Resources Corporation, et al, Petitioners v. William G. Strudley, et al., Respondents. (Cert. granted, April 7th, 2014.) The Colorado court agreed to consider whether a district court is barred as a matter of law from entering a modified case management order requiring the plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery. The court also agreed to consider whether, if such modified case management orders are not prohibited as a matter of law, the district court in this case acted within its discretion in entering and enforcing such an order.

$5.15 Billion Settlement for Environmental Liabilities – Largest Ever Recovery

Earlier today, April 3, 2014, the U.S. Department of Justice announced its largest ever environmental enforcement recovery case involving a $5.15 billion settlement, $4.4 billion of which will go to environmental cleanup and claims. The settlement, with Kerr-McGee Corporation and certain of its affiliates, along with their parent company Anadarko Petroleum, arose from the 2009 bankruptcy of Tronox, Inc., and a December 2013 ruling by the federal bankruptcy court finding a fraudulent transfer of assets to avoid paying environmental cleanup obligations.

Construction Site Stormwater: Turbidity Numeric Criteria Out, BMPs In

On March 6, 2014, EPA published its final rule for construction activities which will require the use of best management practices (BMPs) in lieu of numeric criteria for turbidity.

OSHA Cites Frozen Food Manufacturer for Anhydrous Ammonia PSM Violations

On March 12, 2014, OSHA cited Schwan’s Global Supply Chain Inc., for a number of alleged process safety management (PSM) violations at the company’s Atlanta facility concerning the storage and use of the industrial refrigerant anhydrous ammonia. OSHA is seeking more than $185,000 in penalties associated with the facility’s PSM and related OSHA violations.

Startup, Shutdown, and Malfunction Notifications – EPA Approves Missouri SIP Revision

On March 5, 2014, EPA announced that it was approving SIP revisions to the Missouri SIP regarding start-up, shutdown, and malfunction (“SSM”) conditions, effective April 4, 2014.  79 Fed. Reg. 12394 (Mar. 5, 2014).

Time Spent Donning and Doffing Personal Protective Equipment Not Compensable, According to U.S. Supreme Court

Under the Fair Labor Standards Act (“FLSA”), employers are required to compensate employees for time spent changing clothes before the workday has started and after the workday has ended if doing so is integral and indispensable to the employees’ employment. But the FLSA also states that employers and unions may mutually agree that time spent changing clothes is not compensable. 29 U.S.C. § 203(o). These conflicting rules raise an important question. Can employers and unions mutually agree that employees will not be compensated for time spent putting on and taking off clothing that is necessary to perform their job? The Supreme Court of the United States recently announced that the answer to that question is yes. Unions and employers may mutually agree that employees will not be compensated for time spent changing clothes even if that clothing is necessary to safely perform their job. Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241 (U.S. Jan. 27, 2014).

A More Pragmatic Approach to Cleaning Up Hazardous Waste Facilities

EPA is attempting to expedite cleanup at thousands of hazardous waste sites across the United States by directing its corrective action program to focus on practical cleanup strategies rather than on process.  This emphasis should yield faster and more efficient cleanups for industrial facilities in that program.

Relief for the Over-Regulated?

Belatedly EPA may be recognizing that the RCRA regulatory scheme was not intended to regulate secondary materials generated during retail operations, and EPA has decided to seek input from retailers on potential changes to how the Agency regulates retail operations. Retailers have been EPA enforcement targets during the last few years and EPA has collected substantial penalties. Recently EPA announced that it was releasing a retail sector specific Notice of Data Availability (NODA). EPA is asking the retail industry for comments on retail operations data collected by the Agency including the quantity of hazardous waste generated during such operations.

UST Violations at County’s Fueling Facilities Lead to $5 Million in Fines and Compliance Upgrades

EPA Region 2 and the U.S. Attorney’s Office for the Eastern District of New York recently announced a significant settlement involving underground storage tank (UST) violations for tank systems owned and operated by the County of Suffolk, New York. The settlement serves as a timely reminder of the RCRA compliance obligations for states, counties, municipalities, and local governments that own and operate vehicle fleets, USTs, and tank systems at fueling facilities for Police, Fire, Department of Public Works, Department of Transportation, and related governmental departments.

Insurance Remains Property of Dissolved Corporation Even After Wind-up, According to Delaware Supreme Court

As Delaware has often been selected as a preferred place of incorporation by U.S. businesses, and consequently the venue for dissolution and bankruptcies, the recent decision by the Delaware Supreme Court, In the Matter of Krafft-Murphy Co., Inc., No. 85, 2013 (Del. Nov. 26, 2013), holding that insurance contracts remained property of the dissolved corporation may have significant implications for “orphan shares” at co-disposal, environmental remediation sites, as well as for non-environmental liabilities. As in other states, otherwise formerly insolvent corporations may find themselves once again parties to litigation as potential creditors seek to attach insurance assets.

Oil, Gas & the 2014 Colorado Legislative Session

Colorado is not alone in experiencing the job creation and economic development that is associated with the more robust development of traditional energy resources. States like Oklahoma, Wyoming and Texas, which are normally associated with energy development, have been joined by states like North Dakota, Ohio and Pennsylvania. These new “plays” are made possible by the modern use of a technology that has been around since the 1940’s – hydraulic fracturing.

EPA Approves 2013 Phase I ESA Standard – Agency Says Not to Use 2005 Standard

Effective December 30, 2013, parties may use the 2013 Phase I Environmental Site Assessment standard ASTM E1527-13 to satisfy the All Appropriate Inquiries Rule, according to the EPA. And while the agency has not yet removed references to the 2005 standard in the final rule, 78 Fed. Reg. 79319 (Dec. 30, 2013), EPA clarified that it intends to issue a proposed rule to remove the references to the 2005 standard.

Groundwater Restoration Guidance Issued by EPA – Remedial Action Completion to Entail Well-by-Well Analysis According to Agency

On November 25, 2013, EPA issued a new groundwater cleanup guidance document specifying the need for a well-by-well review when determining whether groundwater restoration remedial action is complete.

Anhydrous Ammonia Violations Result in RMP and PSM Enforcement – Focus on Mechanical Integrity

EPA and OSHA continue to target companies that store and use the industrial refrigerant anhydrous ammonia as reflected in recent EPA Risk Management Plan (RMP) enforcement and OSHA enforcement of the Process Safety Management (PSM) regulations. Failures in the Mechanical Integrity requirements were prevalent in both enforcement cases.

Is OSHA Now Enforcing EPA’s Laws? OSHA to Use TRI Release Data for Targeted Inspections

On November 12, 2013, OSHA Region 7 announced a new Local Emphasis Program applicable in the states of Kansas, Nebraska, and Missouri, that will specifically target companies for OSHA inspections based on their Toxic Release Inventory (TRI) submissions to the U.S Environmental Protection Agency (EPA).

Environmental Indemnity or Waste of Words?

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.

New Final Phase I ESA Standard E1527-13 Issued

On November 6, 2013, ASTM issued its revised standard practice for conducting Phase I Environmental Site Assessments (ESA), with an effective date of November 1, 2013. Now the wait begins to see if EPA will continue to allow the 2005 version of the Phase I ESA standard E1527-05 to satisfy the All Appropriate Inquiries Rule (AAI) at 40 CFR Part 312, or whether the new revised E1527-13 completely supersedes the prior version.

SPCC Violations by Food Company Result in $475,000 Penalty and Injunctive Relief

ConAgra Foods, Inc. and ConAgra Grocery Products, LLC, have agreed to settle alleged violations of the Clean Water Act’s Spill Prevention Control and Countermeasure (SPCC) requirements and the Facility Response Plan (FRP) regulations. The violations were identified by EPA Region 4 during an October 2007 inspection at ConAgra’s plant in Memphis, Tennessee, that refines crude vegetable oil into cooking oils for consumer and commercial use.

Colorado Court Sides With Agency in Withholding Documents at Superfund Site

Documents sought to be obtained from the Colorado Department of Public Health and Environment (“Department”) by watchdog group Colorado Citizens Against Toxic Waste will remain protected pursuant to an Order issued October 22, 2013. Following an in camera review, Denver Judge J. Eric Elliff granted the Colorado Attorney General’s petition to withhold the documents.

EPA Withdraws Wetland Guidance, Issues Study That May Expand Federal Jurisdiction

On September 17, 2013, EPA issued a new hydrological connectivity study that may expand the federal reach of the EPA and U.S. Army Corps of Engineers to regulate upstream waters and wetlands that do not have a permanent connection to traditional navigable waterways. In companion with this action, EPA has also withdrawn guidance intended to clarify the scope of Clean Water Act jurisdiction which the White House Office of Management and Budget has had since February 2012. In lieu of issuing guidance, EPA has sent a proposed rule to OMB for interagency review.

Retail Store Penalty Exceeds $600,000 for Two Mislabeled Pesticides Under FIFRA

EPA Region 4 and Family Dollar, Inc., have entered into a Consent Agreement and Final Order (CAFO) to resolve allegations that the retail store distributed two bleach products with labels that purportedly were not identical to the EPA-approved labels. The settlement, under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), requires the company to pay a $602,438 penalty.

As Colorado Flood Clean-up Begins, Water Quality Concerns are Front and Center

As the floodwaters recede in Colorado, they leave behind scenes of devastation. Communities torn apart, lives lost, homes and businesses left in ruin and disrepair. Second to life & safety concerns during this natural disaster have been impacts to infrastructure like our roads, bridges and water treatment facilities, leaving a major effect of the recent flooding on water quality. While floodwaters were high, the top priority of state and local officials was the preservation of life. As the rescues continue, many are now turning to cleaning-up and the start of rebuilding. Especially for small businesses owners, the process of cleaning and rebuilding can be fraught with legal and regulatory landmines.

Refrigerant Violations at Supermarket Chain Result in $4.7 Million Clean Air Act Settlement

One of the nation’s largest food and drug retailers, Safeway, Inc., has agreed to a $4.7 million settlement associated with violations of the Clean Air Act’s commercial refrigerant and repair rules. The settlement involves a $600,000 civil penalty and a corporate-wide compliance plan, covering 659 stores nationwide, estimated at $4.1 million.

Colorado Attorney General Resists Document Production at Superfund Site

In an effort to resist the production of documents sought by an environmental group under the Colorado Open Records Act, the Colorado Attorney General filed a petition on September 5, 2013, on behalf of the Colorado Department of Public Health and Environment (“Department”), seeking to protect disclosure under the “deliberative process privilege.” The case presents an intriguing question of exactly how much and what types of information must be made available to the public under the Colorado Open Records Act as it pertains to an environmental cleanup action.

EPA to Withdraw Rule Regarding New Phase I ESA Standard E1527-13 as Satisfying All Appropriate Inquiries

When EPA issued its Direct Final Rule on August 15, 2013 (78 Fed. Reg. 49690), approving the use of the new proposed 2013 Phase I Environmental Site Assessment (ESA) standard (ASTM E1527-13) to satisfy the All Appropriate Inquiries Rule, 40 CFR Part 312, the agency specified it would withdraw the Final Rule and it would not take effect if EPA received an adverse comment during the comment period. That has now happened as an adverse comment was received on August 28. Consequently, EPA will withdraw the final rule (if it does what it said it would do) and rely upon the companion Proposed Rule issued simultaneously on the same day, 78 Fed. Reg. 49714, and respond to comments in order to proceed with a final rule.

OSHA Proposing to Adopt Stricter Silica Dust Exposure Limits and Work Practice Standards

On August 23, 2013, OSHA issued a Notice of Proposed Rulemaking designed to reduce the permissible exposure limit (PEL) associated with silica dust exposure. OSHA is proposing a new PEL for respirable crystalline silica (quartz, cristobalite, and tridymite) of 50 μg/m3 in the general industry, construction, and shipyard sectors, a standard anywhere from two to five times more stringent than current PELs that date back to 1971.

Federal Court Strikes Down EPA’s “Deferral Rule” – Landfill Carbon Dioxide Emissions and Other Biogenic Sources Cannot Be Treated Differently in Greenhouse Gas Permitting

According to the D.C. Circuit Court of Appeals, the U.S. EPA acted in an arbitrary and capricious manner in promulgating the 2011 “Deferral Rule” which, albeit temporarily, treated biogenic sources of carbon dioxide differently than greenhouse gas emissions from fossil-fuel combustion in vehicle tailpipes and stationary sources such as coal-fired power plants for purposes of greenhouse gas permitting. The D.C. Circuit’s recent decision to vacate the Deferral Rule in Center for Biological Diversity v. EPA, essentially means that sources of biogenic carbon dioxide – such as landfill gas, wastewater treatment plants, manure management facilities, biomass combustion sources, and ethanol production plants – may no longer rely on the temporary deferral and must now consider such emissions as part of pre-construction and construction permitting (PSD and NSR) and major source operating permits (Title V).

Chemical Facility Safety and Security Under Scrutiny with Presidential Executive Order

On August 1, 2013, President Obama issued an Executive Order – Improving Chemical Facility Safety and Security – aimed at improving safety and security at facilities where chemicals are manufactured, stored, distributed, and used.

Sentencing and the Alternative Fines Act in Clean Air Act Enforcement—The Difference Between Billions and Millions in U.S. v. CITGO

The events in U.S. v. CITGO serve an important learning lesson for both criminal defense attorneys and environmental practitioners of the significance of the Alternative Fines Act, 18 U.S.C. § 3571(d), in the sentencing process in environmental criminal cases and how federal prosecutors may attempt to leverage increased criminal fines and penalties through its provisions.

Kansas Considering New Fracking Regulations Regarding Chemical Disclosure Obligations

The Kansas Corporation Commission (KCC) is evaluating whether to propose a set of new regulations that would require oil and gas companies to disclose the chemicals used in hydraulic fracturing operations.

EPA Finalizes RCRA Exclusion for Solvent-Contaminated Rags, Industrial Wipes, and Shop Towels

On Monday, July 22, the EPA finalized its long-awaited final rule excluding from RCRA regulation solvent-contaminated rags, industrial wipes, and shop towels, provided those rags and wipes are managed properly.  The rule was published in the July 31 Federal Register with an effective date of January 31, 2014.

Workplace Injuries and Occupational Diseases – New Missouri Law

On July 10, 2013, Governor Nixon signed Missouri Senate Bill 1 fixing two prominent issues related to workplace injury; occupational disease under the Workers’ Compensation Law and the Second Injury Fund. Prior to this legislation and pursuant to a 2005 change in the statute, Missouri courts had narrowly construed the term “accident” to exclude occupational diseases from being covered under the Workers’ Compensation framework. Employers were thus no longer immune from lawsuits relating to occupational diseases. As a result employees began suing employers for occupational diseases claiming they were injured as a result of toxic exposures at work. The new law signed by Governor Nixon reverses those decisions and makes it clear that occupational disease is covered by the Workers’ Compensation framework.

Colorado Court Opens Doors to Plaintiffs Challenging Fracking

A Colorado appeals court last week broke new ground in the state by ruling that a trial court cannot enter a so-called “Lone Pine Order,” requiring plaintiffs in a toxic tort case alleging damages from fracking operations, to present prima facie evidence supporting their claims before discovery has started.  Strudley v. Antero Resources, 2013 COA 106, No. 12CA1251.

Owner/Operator Liability Under CERCLA Without Actually Owning or Operating the Site

A federal court has determined that CERCLA “owner” and “operator” liability may extend to parties even if an independent third party moves or transports the hazardous substances from the CERCLA “facility” to a new and different location. Consequently, according to the U.S. District Court for the District of New Jersey in EPEC Polymers Inc. v. NL Industries Inc. (No. 12-3842, May 28, 2013) (unreported), it is not necessary for a party to own the property on which the hazardous substances are ultimately deposited in order to be liable as an owner/operator under Superfund.

Stormwater Penalty Exceeds $475,000 for Three Road Construction Sites

The Kansas Department of Transportation (KDOT) has entered into a federal Consent Decree with the Environmental Protection Agency (EPA) and the U.S. Department of Justice to resolve construction stormwater violations under the Clean Water Act. The Consent Decree, published in the Federal Register on Monday, July 8, 2013, and lodged in federal court on July 1, requires KDOT to pay a civil penalty of $477,500.

New Electronic DMRs for Missouri NPDES Permits

On June 27, 2013, the Missouri Department of Natural Resources (MDNR) announced that the agency is launching an electronic reporting system for Clean Water Act discharge monitoring reports (DMRs).

Who Is in Charge of Health at the Workplace? EPA/OSHA Jurisdictional Conflict Continues

EPA’s November 2002 Draft Guidance  For Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils, 67 Fed. Rg. 71,169 (Draft Guidance), represented EPA’s first significant attempt to address concerns about vapor intrusion – the process whereby vapors emanating from contaminants at surface soils or groundwater can make their way into buildings. 

EPA Solicits Input on New Landfill Gas Regulations for Municipal Solid Waste Landfills

Small businesses, governments, and not-for-profit organizations that own and operate municipal solid waste landfills (MSW) are being invited by EPA to participate in a Small Business Advocacy Review (SBAR) Panel to assist the agency in its review of its Clean Air Act New Source Performance Standards (NSPS) for MSW landfills. As identified in EPA’s June 20, 2013, notice, individuals who are interested in potentially serving on the panel should register by no later than July 5, 2013.

Comment Period Extended for Proposed Regulation of Hydraulic Fracturing on Federal Lands

Individuals and companies now have until August 23, 2013, to provide comments to the U.S. Bureau of Land Management’s (BLM’s) proposed rule to regulate hydraulic fracturing activities associated with oil and gas production on BLM federal lands, first issued in the Federal Register on May 24, 2013. The BLM manages more than 245 million acres of public land, the most of any federal agency. This land, known as the National System of Public Lands, is primarily located in 12 Western states, including Alaska. The BLM also administers 700 million acres of sub-surface mineral estate throughout the nation and 56 million acres of sub-surface mineral estate on Indian lands.

Improper Disposal of Consumer Products by Retailer Leads to $82 Million Criminal and Civil Penalty for RCRA, FIFRA, CWA Violations

On May 28, 2013, EPA announced that “Wal-Mart Stores Inc. pleaded guilty today in cases filed by federal prosecutors in Los Angeles and San Francisco to six counts of violating the Clean Water Act by illegally handling and disposing of hazardous materials at its retail stores across the United States. The Bentonville, Ark.-based company also pleaded guilty today in Kansas City, Mo., to violating the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) by failing to properly handle pesticides that had been returned by customers at its stores across the country.”

Green Remediation – Will EPA Endorse ASTM’s Standard?

According to EPA, the agency is working with ASTM International to develop a voluntary consensus-based standard for greener cleanups. That standard is due out in July 2013 according to the Greener Cleanups Workgroup Chair of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), as identified in an April 2013 presentation.

Are Commercial Buildings and Public Buildings a Lead-Paint Hazard? Contractors Could be Impacted by Renovation Regulations Contemplated by EPA

Today’s guest post is courtesy of Andrew Brought, a partner with Spencer Fane Britt & Browne, LLP’s Environmental Group.

If you manage or perform renovations, repairs, or painting activities on the exterior or interior of public building or commercial buildings, you should be aware that EPA is currently evaluating whether and how to regulate such activities in public buildings or commercial buildings constructed before 1978 that pose lead-based paint hazards. On Monday, May 13, 2013, EPA issued a notice in the Federal Register that it is seeking public comment on this topic until July 12, 2013, and will host a public meeting at EPA’s headquarters on June 26, 2013.

Cheap Natural Gas Prices: Prelude to Energy Unreliability and Price Volatility

Cheap gas prices driven by a boom in new shale gas development, coupled with more stringent emissions controls for coal fired plants, are causing a shift from coal to natural gas as the primary source of electric power in the United States. In the short term, most welcome this shift because natural gas produces significantly fewer greenhouse gas (“GHG”) emissions. But it appears increasingly certain that in the long run, this shift will result in decreased energy grid reliability and significantly higher electricity costs due to natural gas price volatility.

Worker Endangerment Criminal Case Involves Investigation by 12 Federal and State Agencies, Including OSHA, DOT-HazMat, and EPA

On May 9, 2013, the former president of Port Arthur Chemical and Environmental Services, LLC, pleaded guilty to violating the Occupational Safety and Health (OSH) Act and making a false statement, following the death of an employee by asphyxia and poisoning due to hydrogen sulfide inhalation and the death of a second employee who died from a heart attack associated with the chemical exposure.

OSHA Cites Fracking Company for Confined Space Worker Fatality

OSHA has issued nine serious safety violations to First Choice Energy of Minot, North Dakota, following an employee fatality after the worker was caught in the agitator of an oil-field vacuum truck storage tank.

DOT-PHMSA Increases Civil Penalties for HazMat Violations

Effective April 17, 2013, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) has revised its maximum and minimum civil penalties for violations of the federal hazardous material transportation law (“HazMat”) for violations occurring on or after October 1, 2012.

Food Production Company Settles Anhydrous Ammonia RMP Violations for $4.2 Million

One of the largest food production companies in the world has agreed to resolve violations of EPA’s Risk Management Program (RMP), Clean Air Act Section 112(r), 40 CFR Part 68, stemming from failures associated with its storage and management of the refrigerant anhydrous ammonia. As part of a federal Consent Decree currently subject to public comment until May 10, 2013, Tyson Foods, Inc., is agreeing to pay a $3.95 million civil penalty and fund a $300,000 Supplement Environmental Project (SEP) through the purchase of emergency response equipment.

EPA Seeks Input on Draft Final Vapor Intrusion Guidance Documents

On April 15, 2013, EPA made available to the public its highly anticipated guidance documents on vapor intrusion. Both documents are external review drafts subject to further review and revision, and they may not be adopted at all. EPA is seeking public input and comment between April 16 and May 24, 2013. The first document, “OSWER Final Guidance For Assessing And Mitigating The Vapor Intrusion Pathway From Subsurface Sources to Indoor Air – External Review Draft” is a general guidance for all compounds. Separately, EPA is also seeking comment on its guidance regarding petroleum hydrocarbons released from underground storage tanks, “Guidance For Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites – External Review Draft.”

“The Fourth Circuit’s Ashley II Decision – Property Redevelopers and Superfund Liability Defenses”

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.

The Impact of the Proposed Listing of the Prairie Chicken as “Threatened” under the Endangered Species Act on Wind Energy and Oil & Gas Development

Recently the United States Fish & Wildlife Service (“FWS”) issued a proposal to list the Lesser Prairie Chicken (“LPC”) as “threatened” under the Endangered Species Act (“ESA”). The listing of the LPC will have significant impacts on the current and future operations of the wind energy and oil & gas development industries.

Wastewater Mixing Zones, Blending Rules and the “Tyranny of Small Decisions”

On March 25, 2013, the U.S. Court of Appeals for the Eighth Circuit sent a clear message to the EPA and other federal agencies: guidance documents and interpretive memoranda do not qualify as APA-compliant rulemaking. Iowa League of Cities v. EPA, slip op. No. 11-3412 (8th Cir. March 25, 2013).

Solvent-Contaminated Rags, Industrial Wipes, and Shop Towels Rule Delayed

Businesses and companies that generate solvent-contaminated shop towels, rags, and industrial wipes know all too well the challenges associated with the RCRA hazardous waste management and disposal requirements of used solvent-contaminated rags. Those facilities awaiting clarity and reduced housekeeping burdens through proposed EPA exemptions (first proposed nearly 10 years ago) are going to have to wait a little longer, at least until October 2013. The final rule was originally slated to be released in fall 2012.

April Showers Bring . . . Takings Claims? Government-Induced Temporary Flooding can be a Taking of Property According to U.S. Supreme Court

A recent decision by the United States Supreme Court could have significant ramifications on governments this Spring as seasonal flooding is just around the corner.

EPA Draft Guidance Allows Consideration of PM2.5 Significant Impact Levels (SILs) to Exempt Air Permit PSD Modeling on Case-by-Case Basis

On March 4, 2013, EPA published “Draft Guidance for PM2.5 Permit Modeling” (“Draft Guidance”) and a series of questions and answers (“Q&A”) in response to the D.C. Circuit Court’s decision on PM2.5 SILs and Significant Monitoring Concentration (“SMC”), Sierra Club v. EPA, ___ F.3d ___, 2013 WL 216018 (D.C. Cir. Jan. 22, 2013). The Court’s decision vacated and remanded the PM2.5 SILs regulations for further consideration and vacated the PM2.5 SMC. These regulations provided PSD permit applicants exemptions from certain preconstruction modeling and ambient air monitoring requirements for PM2.5. The Court rejected the PM2.5 SILs and SMC rules on the grounds that the exemptions did not provide the permitting authority sufficient discretion to determine whether there would be an exceedence of the National Ambient Air Quality Standards (“NAAQS”).

OSHA Publishes HazCom Guidance on New Labeling and Training Requirements

Employers subject to OSHA’s Hazard Communication Standard (HazCom), 29 CFR 1910.1200, should already be well aware of the major changes pending to OSHA’s HazCom Standard as a result of revisions in 2012. While compliance with the technical aspects do not take effect until June 1, 2015, employers must train employees on the new labeling requirements and format for Safety Data Sheets by no later than December 1, 2013. In an effort to assist employers with that training and in understanding the new labeling and pictogram requirements, OSHA recently published guidance materials in February 2013 on the new HazCom labeling and training requirements.

PSD Permit Modeling for PM2.5 – EPA Seeking Input Following Federal Court Remand of SILs Permit Exemption

On January 22, 2013, the D.C. Circuit Court of Appeals vacated and remanded to the EPA for reconsideration portions of two Prevention of Significant Deterioration (PSD) regulations setting Significant Impact Levels (SILs) and Significant Monitoring Concentrations (SMC) for fine particulate matter, PM2.5. Sierra Club v. U.S. Environmental Protection Agency, __ F.3d __, 2013 WL 216018 (D.C.Cir. Jan. 22, 2013) (No. 10-1413). These rules establish screening tools to exempt PSD permit applicants from having to conduct extensive site specific modeling to demonstrate compliance with the National Ambient Air Quality Standards (NAAQS) and site specific pre-construction monitoring, respectively for PM2.5. 75 Fed. Reg. 64864 (Oct. 20, 2010). As a result of the court’s action, permits pending issuance that relied on these screening tools may be subject to additional review and, as discussed further below, EPA is seeking input based upon a notice the agency issued on February 6, 2013, regarding the impact of the court’s decision.

Kansas Seeks RCRA Corrective Action Authority from EPA

Since 1985 the Kansas Department of Health and Environment (KDHE) has administered the RCRA hazardous waste management program in Kansas through a delegation of authority from EPA. 50 Fed. Reg. 40377 (Oct. 3, 1985). KDHE’s delegated authority, however, has never included RCRA’s Corrective Action requirements. But that may be about to change as KDHE is in the process of seeking authorization to implement the Corrective Action program in lieu of EPA.

EPA to Re-evaluate Regulation of Disposed Consumer and Retail Products as Hazardous Waste Under RCRA

In March 2013, EPA will begin the process for evaluating whether to clarify and make the RCRA hazardous waste regulations more effective for managing waste retail products. According to EPA’s notice, “Retailers face uncertainty in managing the wide range of retail products that may become wastes if unsold, returned, or removed from shelves for inventory changes. Because of the wide range of products that can become waste, retailers find it difficult to comply with the RCRA hazardous waste regulations that were designed for manufacturing and other types of industry wastes.”

EPA’s Transparency Initiatives Aimed to Expose Violators – The Best of Disinfectants or a Scarlet Letter?

On February 7, 2013, EPA launched a new interactive transparency tool as part of its Enforcement and Compliance History Online (ECHO) database intended to provide information about the performance of state and EPA enforcement and compliance programs across the country. According to EPA, the “dashboards and maps include state level data from the last five years and provide information including the number of completed inspections, types of violations found, enforcement actions taken, and penalties assessed by state.”

EPA Seeking Input on National Enforcement Initiatives FY2014-2016, and “Next Generation Compliance” Initiative

On January 28, 2013, EPA issued a notice in the Federal Register, 78 Fed. Reg. 5799, requesting comments on whether the agency should extend the current six national enforcement initiatives for another three years. Comments must be received on or before February 27, 2013.

Road Construction Contractor to Pay $735,000 Fine for Stormwater Discharges

On January 3, 2013, a general contractor for the Oregon Department of Transportation, Granite Construction Co., settled allegations of Clean Water Act stormwater permit discharge violations for $735,000. The settlement is currently subject to a 30-day comment period as reflected in the January 18, 2013, federal register notice.

Universities, Hospitals, and Related Institutions Subject to Revised Final EPA “Area Source” Boiler Air Rules

On December 20, 2012, EPA finalized its “area source” boiler regulations designed to limit air emissions from small- to medium-sized boilers that burn coal, oil, or biomass which serve as the source of heat and sometimes power at a variety of commercial businesses, such as hotels and office buildings, as well as institutional entities, including universities, schools, education centers, medical centers, hospitals, municipal buildings, and prisons. According to EPA, 183,000 boilers at 92,000 area source facilities nationwide will be impacted by the final rule, 85 percent of which EPA considers to be small businesses or entities.

EPA’s UAO Cleanup Authority Challenged

The U.S. Supreme Court’s March 2012 decision in Sackett v. EPA, 132 S. Ct. 1367, 182 L. Ed. 2d 367, 73 ERC 2121, held that the Administrative Procedures Act (APA) allows property owners to challenge an administrative compliance order issued by the U.S. Environmental Protection Agency (EPA) under Section 309 of the Clean Water Act (CWA).

Has EPA Stopped Using Its Voluntary Self-Disclosure Policy?

Last year, EPA Senior Management determined that EPA would no longer use agency resources to address disclosures made by private parties under EPA’s policy on “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” otherwise also known as the “Audit Policy.” This decision on disinvestment of resources is reflected in current EPA guidance for EPA regional managers. At a time of dwindling government resources, EPA seems to have decided to abandon its highly touted Audit Policy because disclosures under the Audit Policy have not, from EPA’s perspective, produced the biggest bang for EPA’s buck. In fact, EPA has been disappointed by the reluctance of private parties to disclose major violations.

EPA Cannot Regulate Stormwater Flow Rate as a “Surrogate” for Sediment Runoff, According to Federal Court

On January 3, 2013, the U.S. District Court for the Eastern District of Virginia ruled that the EPA exceeded its statutory authority in its attempt to regulate stormwater flow as a surrogate for controlling sediment runoff. Although sediment is a Clean Water Act “pollutant,” according to the court, stormwater flow rate is not. Consequently, EPA’s authority does not extend to regulating nonpollutants as surrogates for pollutants, representing a major victory for municipalities and states responsible for stormwater discharges and MS4 stormwater systems.

No National Change to EPA’s Air Emission Source Aggregation Policy, Despite Sixth Circuit Ruling in Summit Petroleum

As clarified in a December 21, 2012, memorandum issued to the EPA Regional Air Division Directors, EPA will continue to apply a “functional interrelatedness” test in determining whether multiple air emission sources are “adjacent” for purposes of source aggregation for air permitting under Title V and new source review (NSR) programs for all states other than those under the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee). “Outside the 6th Circuit, at this time, EPA does not intend to change its longstanding practice of considering interrelatedness in the EPA permitting actions in other jurisdictions.”

Self-Disclosure Leads to EPA’s First Greenhouse Gas Emissions Enforcement Case

An oil and gas production company has become the first business in the country fined by EPA for violations of the Clean Air Act’s Greenhouse Gas Tailoring Rule. EPA Region 9 fined the company $34,000 in December 2012 as part of a Consent Agreement following the company’s self-disclosure concerning its failure to obtain a permit for greenhouse gas emissions before construction of three steam generators under EPA’s Prevention of Significant Deterioration (PSD) permitting program.

EPA Releases Progress Report on Impacts of Hydraulic Fracturing on Drinking Water Resources

EPA released an interim progress report today, December 21, 2012, regarding its much-anticipated study of potential impacts to drinking water resources from hydraulic fracturing. EPA’s multi-year study, at the behest of Congress, seeks to identify and understand potential impacts to drinking water associated with water withdrawals, the fate and transport of chemicals associated with fracking, and wastewater treatment and disposal as a result of fracking activities.

Recently Enacted Fracking Ban in Colorado Challenged, Highlighting Divide Between State and Local Governments on Energy Production

On December 17, 2012, the oil and gas industry filed a lawsuit to overturn the recent ban on hydraulic fracturing (“fracking”) approved by citizens in the town of Longmont, Colorado. The lawsuit comes just weeks after the town of Longmont, approximately 30 miles north of Denver, voted to amend its City Charter to ban hydraulic fracking within its City limits. The potential environmental impacts of fracking, the authority to regulate the practice and related energy production activities, and the power struggle among the federal government, states, and localities in the current regulatory vacuum has generated a hotly contested nationwide debate.

“Stormwater Runs Through It” – Stormwater as the New Epicenter of Clean Water Act Regulatory Disputes

Stormwater, increasingly, is becoming the new battleground in Clean Water Act permitting disputes and related litigation and enforcement. Indeed, just this past week on December 3 and 4, 2012, the U.S. Supreme Court heard two different stormwater cases from the Ninth Circuit U.S. Court of Appeals, one concerning whether discharges from logging road culverts constitute point source discharges, and the other matter regarding whether municipal stormwater discharges from channelized sections of a river into downstream unchannelized portions constitute a discharge. These cases, however, are just the tip of the iceberg.

EPA Issues New Guidance to Assist Tenants in Avoiding Cleanup Liability at Contaminated Sites

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.

Sentencing and the Alternative Fines Act in Clean Air Act Enforcement – The Difference Between $2 Billion Versus $2 Million in U.S. v. CITGO

On November 6, 2012, a federal district court denied the request of federal prosecutors to empanel a sentencing jury in U.S. v. CITGO Petroleum Corp., Case No. 06-cr-563 (S.D. Tex.), for the purpose of determining facts necessary to support a fine associated with CITGO’s “gross, pecuniary gain” under the Alternative Fines Act. The court so held because a sentencing jury “would unduly complicate or prolong the sentencing process.” As a result, the government’s proffered calculation of more than $2 billion under the Alternative Fines Act – aimed at recouping double the Refinery’s total profits over a ten-year time span – may be in jeopardy.

Missouri Revises its Model Environmental Covenant for Activity and Use Limitations on Contaminated Sites

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.

EPA Issues Final Decision on Missouri’s 303(d) List of Impaired Waters

On November 13, 2012, EPA Region 7 issued its final decision on the Missouri Department of Natural Resources’ (MDNR) list of impaired waters, bringing the total number of impaired waters on the Missouri 2012 303(d) list to 258.

EPA’s Enforcement “Watch List” Enters Second Year Online

For the past year, EPA has been posting a monthly “Watch List” of companies allegedly in violation of the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act. The Watch List includes those facilities that purportedly have high priority violations under the CAA, and facilities with significant noncompliance status under the CWA and RCRA.

Sixth Circuit Holds “Adjacent” Means Adjacent – Major Blow to EPA’s Interpretation of Emission Source Aggregation for Air Permitting

On October 29, 2012, the U.S. Court of Appeals for the Sixth Circuit dealt the EPA a setback by denying its motion to rehear the court’s August 7, 2012, decision in Summit Petroleum v. EPA, 690 F.3d 733 (6th Cir. 2012). In Summit Petroleum, the court rejected the agency’s interpretation of its own regulations concerning when multiple emission sources are to be treated as a single source for air permitting under the Title V program. Consequently, when evaluating whether to aggregate multiple air emission sources based on if those sources are “adjacent” to one another, the agency is required to consider the ordinary meaning of the term adjacent (e.g., physical and geographical proximity), and not the functional interrelatedness of those sources as argued by EPA.

PCB Sediment Cleanup Case Settled for $366 Million by Single Defendant, With Reopener for NRD

EPA Region 1 and the Massachusetts Department of Environmental Protection announced recently the largest ever single-site Superfund “cash-out” settlement, $366.25 million (plus interest), associated with the New Bedford Harbor Superfund Site in New Bedford, Massachusetts.

“Green” Marketing and Advertising Guides Revised by the FTC

Under the revised Green Guides, the FTC cautions advertisers on general environmental benefit claims, like “green” or “eco-friendly” due to the inability to substantiate such claims. Instead, marketers should qualify general claims with specific environmental benefits, and such qualifications should be clear, prominent, and specific.

California Supreme Court Addresses Insurance Coverage for Long-Tail Legacy Environmental Liabilities

In a long-awaited landmark ruling, the California Supreme Court in State of California v. Continental Insurance Company, 55 Cal. 4th 186, 281 P.3d 1000 (Cal. 2012), has held that insurers issuing CGL “occurrence” policies are obligated to pay all sums to indemnify policyholders for property damage attributable to the Stringfellow Superfund site. Additionally, the decision addresses “stacking” of policy limits when more than one policy is triggered by an occurrence, permitting each policy triggered to be called upon to the extent of its full limits, thereby allowing potential recovery up to the combined limits of all policies.

New Jersey Spill Act Requires Causation for Liability According to State Supreme Court

Companies with current or former operations in New Jersey, particularly those with operations situated on industrial properties and contaminated sites, have a new means to make the New Jersey Department of Environmental Protection (NJDEP) prove up responsibility for site contamination before joint and several strict liability may attach under the New Jersey Spill Compensation and Control Act (Spill Act). In a decisive unanimous opinion, the New Jersey Supreme Court recently held in NJDEP v. Dimant that the Spill Act requires a “reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site.”

Dairy Company Settles Clean Air Act General Duty Clause and RMP Allegations for Refrigeration System Violations and Leaks

A dairy company in EPA Region 2 has agreed to pay a $275,000 civil penalty and to implement a Supplemental Environmental Project (SEP) valued at more than $3 million to resolve alleged violations of the Clean Air Act’s (CAA) General Duty Clause and Risk Management Plan (RMP) requirements. This latest settlement serves yet another reminder to companies that utilize anhydrous ammonia in industrial and commercial refrigeration systems (e.g., food service industry, warehousing and distribution, bakeries, cold storage, and pharmaceutical), as well as those that store anhydrous ammonia for use as an agricultural fertilizer (farm-supply companies and cooperatives), that EPA is aggressively enforcing the CAA regulations.

EPA’s 2012 Chemical Data Reporting Rule and TSCA Enforcement for Failure to Report Chemical Data

Did your business manufacture or import more than 25,000 lbs. of chemical substances (including byproducts) at any single site in calendar year 2011? If so, your company may be subject to EPA’s 2012 Chemical Data Reporting Rule, 40 CFR Part 711, under the Toxic Substances Control Act (TSCA) and you should have filed a submission to EPA on or before August 13, 2012.

Construction Companies Pay $270,000 to Settle Stormwater CWA Violations at 17 Construction Sites

On August 29, 2012, EPA announced a significant Clean Water Act enforcement action and administrative settlement associated with the agency’s construction stormwater permit requirements for land clearance activities at 17 constructions sites in the Mid-Atlantic States, many of which were federal or local government projects. In addition to paying a $270,000 administrative penalty, EPA ordered the companies to come into compliance on a going forward basis by undertaking certain prescriptive tasks at construction sites akin to injunctive relief, through an administrative order on consent.

Kansas Exempts Specific Pharmaceutical Wastes from Hazardous Waste Regulations

Healthcare facilities in Kansas, including hospitals, clinics, pharmacies, physician’s offices, and outpatient care centers, can take advantage of new state guidance designed to ease the burden of pharmaceutical waste disposal for a limited group of pharmaceutical products. On August 29, 2012, the Kansas Department of Health and Environment (KDHE) issued a guidance document entitled “Regulation of Pharmaceuticals from Non-Exempt Generators of Hazardous Waste” that exempts four classes of pharmaceuticals from hazardous waste regulations if the healthcare facility satisfies certain conditions.

EPA Aggressively Pursuing FIFRA Enforcement of Misbranded and Unregistered Pesticides in Region 4, Region 5, and Region 7

On September 7, 2012, EPA announced the largest ever criminal fine and civil penalty, a combined $12.5 million enforcement action, under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates the manufacture, distribution, sale, and use of pesticides in the United States.

EPA to Issue Final Vapor Intrusion Guidance by the End of November 2012

Nearly 10 years to the day when EPA issued its Draft Guidance for Vapor Intrusion, EPA is poised to finalize its Final Vapor Intrusion Guidance on or before November 30, 2012.

Regulators Develop Framework to Address the “Hidden Costs” of Institutional Controls Associated with Remedial Site Cleanups

Companies undertaking remedial cleanups at Brownfield and CERCLA sites should anticipate increased cost estimates for long-term stewardship and oversight in response to a recently issued report by the Association of State and Territorial Solid Waste Management Officials describing fundamental flaws in the current cost estimation methodology associated with long-term stewardship.

DOT Evaluating New HazMat Regulations for Reverse Logistics of Retail and Consumer Products

Companies involved in the shipment, transportation, distribution, and logistics of consumer products and retail items that contain “hazardous materials” (HazMat) – as regulated by the U.S. Department of Transportation (DOT) – may soon face new requirements from the DOT governing the reverse logistics process.

Big Changes Ahead for OSHA’s HazCom Standard

Andrew Brought discusses an update on OSHA’s Hazard Communication Standard (HazCom), 29 CFR 1910.1200,and its significant facelift. By OSHA’s own estimate, over 5 million workplaces across the country will be affected by the revised regulations.

EPA Continues to Target Food Warehousing and Distribution for Clean Air Act 112(r) Enforcement

Businesses that use commercial refrigeration systems, such as cold storage, retail grocers, wholesale food distribution, and related warehousing and transportation companies, continue to face enforcement scrutiny from EPA regarding the use and storage of the refrigerant anhydrous ammonia. In particular, companies that store more than 10,000 lbs. of anhydrous ammonia are required to comply with EPA’s Risk Management Program (RMP) regulations under the Clean Air Act Section 112(r), 40 CFR Part 68.

EPA Region 8 RMP Enforcement Directed At Water Treatment Plants and Facilities that Store and Use Anhydrous Ammonia

On July 26, 2012, four different companies settled alleged violations of EPA’s Risk Management Program (RMP) regulations under section 112(r) of the Clean Air Act, 40 CFR Part 68, which are designed to prevent and minimize chemical accidents involving extremely hazardous substances.

Environmental Permit Appeals in Missouri Subject to New Process

Effective August 28, 2012, businesses and companies subject to environmental permits in the State of Missouri will be subject to new permit appeal procedures.

EPCRA Chemical Storage Reporting to Increase Under New EPA Regulation

Beginning January 1, 2014, businesses subject to EPA’s Tier I and Tier II EPCRA hazardous chemical storage inventory reporting requirements will be required to submit more detailed information as part of a new EPA final rule recently published in the Federal Register, 77 Fed. Reg. 41,300 (July 13, 2012).

Groundbreaking EPA Enforcement at Hydraulic Fracturing Sites

In a first-of-its-kind enforcement action in the nation, EPA Region 3 has entered into a consent agreement with Talisman Energy USA Inc. for violations of the Emergency Planning and Community Right-to-Know Act (EPCRA) at natural gas exploration and production sites involved in fracking operations in Pennsylvania.

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