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Environmental Law

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.

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.

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).

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.

New Rule Issued by EPA and the Army Corps of Engineers Expands Federal Jurisdiction over Waters and Wetlands

On May 27, 2015, EPA and the Corps of Engineers released a final rule that expands federal jurisdiction under the Clean Water Act. The rule expands on existing law by asserting jurisdiction by rule over all tributaries to traditional navigable waters, without regard to the quantity or timing of flow.  Tributaries are defined in the rule as “waters that are characterized by the presence of physical indicators of flow – bed and banks and ordinary high water marks – and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas”.

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.

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.

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.

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.

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. 

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”).

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.

Extraction Gas and Oil shale: The Controversy of Fracturing in the regulations of the European Union and U.S.

According to the U.S. Department of Energy , from 2013 at least two million oil wells and gas in the United States have been hydraulically fractured , and that currently about 95% completed oil wells and gas in the U.S. is hydraulically fractured . Hydraulically fractured wells represent 43 % oil and 67 % of the current natural gas production in the United States . Safety and environmental health concerns about hydraulic fracturing appeared in the 1980s and are still being debated at the state and federal government . Vermont and New Jersey have banned the practice , with other states , including New York , placing regional moratoriums in place.

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.

University of Missouri-Columbia Study Links Endocrine System Health Effects to Fracking

In the controversy over potential health effects from hydraulic fracking and the injection of chemicals to abet oil and gas extraction processes, a December 16th, 2013 study released by U. of Missouri-Columbia on Colorado fracking sites has garnered significant attention.    Published in the journal, Endocrinology, the study focused on a selected subset of chemicals, including over one hundred known or suspected endocrine disrupting chemicals (“EDCs”), used in natural gas drilling operations, as well as surface and ground water samples collected in a drilling region of Garfield County, CO.

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.

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.

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.

Top Tips: Handling Inspections by OSHA & Other Government Agencies

Andrew Brought provides useful information in responding to OSHA and other government inspections of facilities.

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.

RCRA’s Reach to Retail and Consumer Products

On July 1, 2013, Andrew Brought presented to the Missouri Waste Control Coalition on RCRA’s Reach to Retail and Consumer Products.

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. 

Indoor Air Quality – Continued Uncertainty Surrounding EPA/OSHA Jurisdictional Conflict and Recent State Responses

In November 2002, EPA issued its Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Subsurface Vapor Intrusion Guidance), 67 Fed. Reg. 71,169 (Draft Guidance). This document represented EPA’s first significant attempt to address concerns about vapor intrusion – the process whereby vapors emanating from contaminated subsurface soils or groundwater can make their way into buildings, either through natural pathways or building ventilation systems. Though methods for assessing the risk posed by vapor intrusion may still be inconsistent and unreliable, environmental scientists agree that the potential adverse effect on human health due to vapor intrusion may be significant. Thus, the need for some form of guidance on vapor intrusion by regulatory agencies was clear.

A More Pragmatic Approach to RCRA Long-Term Cleanup Actions

The cleanup process under RCRA used to be synonymous with delay, bureaucracy, and an emphasis on comprehensive and complete studies at the expense of getting current and future risks to human health and the environment addressed. Cleanup progress was severely hampered because of the sequential process on which RCRA project managers insisted without adequate acknowledgement of site-specific circumstances. Additionally, the RCRA program was characterized by a command and control mentality which did not allow for productive interactions between the regulated community and the regulators. Further, the confusing RCRA regulatory process made expeditious cleanups impossible.

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.

When it Rains it Pours: Municipal and Govt. Liability Associated with Stormwater Events, Flooding, and Other Recent Water Developments

On May 23, 2013, Bill Brady and Drew Brought presented to the Colorado Special District Association on regulatory developments focused on clean water initiatives by the federal Environmental Protection Agency (EPA) and state environmental agencies leading to major impacts on municipalities and local governments.  In addition, the presentation focused on a recent decision by the United States Supreme Court could have significant ramifications on governments.

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.

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.

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.

Recent Determinations on Clean Air Act Source Aggregation and Other NSR/PSD Judicial Developments

On February 20, 2013,  at the Overland Park Convention Center, Mike Hockley made a presentation on two recent court decisions concerning PSD Source Determinations  at the 2013 AWMA Midwest Chapter Technical Conference.

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.”

Navigating Uncertain Waters: Regulatory Developments in Clean Water Act Enforcement, Stormwater Permitting, and Hydraulic Fracturing

On February 12, 2013, Bill Brady, Drew Brought, and Kate Whitby, with the Environmental Law Practice Group of Spencer Fane Britt and Browne LLP, hosted a 60-minute complimentary Webinar and guided participants through the latest Clean Water Act developments and clean water initiatives.

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.”

Hydraulic Fracturing Regulation in the United States: The Laissez-Faire Approach of the Federal Government and Varying State Regulations

Bill Brady’s article, Hydraulic Fracturing Regulation in the United States: The Laissez-Faire Approach of the Federal; Government and Varying State Regulations, was published in the Vermont Journal of Environmental Law (VJEL). The association of the VJEL engages and educates the legal, policy, and public communities through its Journal, other publications, online dialogue, and symposia on a broad range of environmental law and policy issues affecting local, aboriginal, national, and global communities.

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.

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.

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’s Draft Guidance For Vapor Intrusion and Its Connection to the Construction Industry

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. As a result, business that build or own property near contaminated sites, such as Brownfield Sites and industrial sites, need to stay aware of how these changes may impact your operations. More and more businesses, for example, will require a vapor barrier or a vapor migration system (active or passive) that diffuses vapors from the building to satisfy EPA’s requirements.

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.

Practical Tips and Considerations for Administrative Appeals and Hearings

Andrew Brought, a Partner in Spencer Fane’s Environmental Practice Group, recently presented on the topic of Environmental Permit Appeals at the 20th Annual Environmental Conference at the Lake.

EPA’s Warehouse and Consumer Products Enforcement Initiative

Product distribution, logistics, transportation, wholesale, big box retail, food service and refrigeration, pharmaceutical, and related warehousing operations are usually not thought of as EPA enforcement targets, but that has changed. This webinar recording highlights current developments and help you identify your risks.

Pharmaceutical Waste Disposal Practices Under Increased Scrutiny from EPA and State Environmental Agencies

Citing “widespread noncompliance in the health care industry,” the U.S. Environmental Protection Agency’s Office of Inspector General recently issued a report criticizing the agency for its failure to properly regulate discarded pharmaceutical waste as hazardous waste.   While for many years EPA has banned the improper disposal of a variety of pharmaceutical wastes from hospitals, pharmacies, physicians’ and dentists’ offices, outpatient care centers, residential care facilities and the like, the report concludes that many health care facilities are unaware of the hazardous waste regulations covering pharmaceutical wastes. 

Construction Sites and Land Clearance Activities Subject to New Stormwater Discharge Requirements in Kansas and Missouri

Construction companies, contractors, and developers in Kansas and Missouri are facing new legal requirements imposed on construction sites and land clearance activities aimed at erosion and sediment control requirements associated with stormwater discharges.  These new construction stormwater permit requirements will require businesses to actively manage their operations to prevent and minimize erosion and sediment loss from rainfall events, beyond simply procuring a stormwater permit for the file and establishing BMPs as has been done in the past.   

Federal Government Targets Employers for OSHA Inspections Based on Workers’ Compensation Claims Data

Citing concerns with underreporting of OSHA injuries and illnesses, OSHA Region 7 in Kansas City, Missouri, has begun to target companies for inspection and enforcement based on workers’ compensation claim data.  So far, the OSHA Nebraska Area Office is working with the Nebraska Workers’ Compensation Court in this effort.  This initiative has already led to enforcement and mandatory OSHA inspections in matters such as chemical exposure, noise exposure, ergonomic hazards, amputation, and electrical shock.

EPA May Seek to End Voluntary Self-Disclosure Audit Policy

EPA’s Office of Enforcement and Compliance Assurance has announced in a draft FY13 planning guidance that it intends to curtail EPA’s voluntary self-disclosure and audit policy (EPA Audit Policy). If this proposal becomes final, OECA will reduce its national oversight of the EPA Audit Policy and the regions will be directed to consult with headquarters before undertaking any new work in response to self-disclosures.  If adopted, these changes will force businesses to re-think whether to conduct environmental audits and compliance assessments and what to do about violations they may uncover.

Renewable Energy Installations on Closed Industrial Sites: An Overlooked Economic Opportunity

Redevelopment of contaminated properties is challenging even in the best of economic times. Renewable energy projects offer a meaningful alternative for property owners, communities, and regulators seeking to return impacted properties to productive use.

Michigan Court Imposes New Duty to Disclose on Real Estate Agents

The Michigan Court of Appeals affirmed a jury verdict holding a real estate agent liable under a theory of silent fraud and negligent misrepresentation for failure to disclose environmental contamination to a prospective buyer, thus establishing an expanded duty of care for real estate agents in transactions involving property where there are known past environmental issues. This article was published in the American College of Environmental Law blog on February 15, 2012.

Environmental Criminal and Civil Investigations: Responding When The Regulators Knock

Spencer Fane’s Andrew Brought presents at the 2012 Air and Waste Management Association (AWMA) Midwest Chapter’s Technical Conference.

Renewable Energy at Remediation Sites

The United States Environmental Protection Agency encourages property owners and developers to install renewable energy facilities on underutilized industrial and potentially contaminated sites.

EPA Releases Facilities’ Greenhouse Gas Emissions Data

On January 11 the United States Environmental Protection Agency released its first report on large industrial facilities’ and suppliers’ greenhouse gas emissions.  EPA presents the data on a web site by state and facility in a searchable format, which will invite comparisons and attention, perhaps unwanted.  Facilities in the database may wish to prepare for potential publicity and consider changes that will reduce their reported emissions in future years.

Key Developments in Environmental Regulation That Will Affect Your Business in 2012

Jim Price outlines key environmental regulations that will impact manufacturers in 2012.

Understanding the LEED Green Building Rating System

All LEED buildings are certified based on five environmental categories: Sustainable Sites, Water Efficiency, Energy and Atmosphere, Materials and Resources, and Indoor Environmental Quality. And two additional categories (non-environmental) of Innovation in Design and Regional Priority under which points are awarded as well.

Recent Developments: CERCLA

Presentation on Recent Developments in Superfund Litigation to ACOEL Membership at the 2011 ACOEL Annual Meeting in Seattle, September 24, 2011.

No PRP Left Behind: The Tenth Circuit Allows Non-settling PRPs to Intervene as of Right in CERCLA Consent Decree Actions

When potentially responsible parties (“PRPs”) settle with the government over CERCLA response costs, the settling parties obtain immunity from any related contribution claims that might otherwise be brought against them. Because such settlements foreclose non-settling PRPs’ contribution rights under CERCLA, the non-settling PRPs often seek to intervene in the settlement actions to oppose the proposed consent decrees and prevent potentially inequitable cost allocations.

Environmental Enforcement Trends in the Midwest

This presentation reviews recent federal and state enforcement activities and priorities to help the regulated community better plan for environmental compliance and agency inspections.

Spencer Fane Project Among 2010 Phoenix Award Winners

Spencer Fane Partner, Baerbel Schiller represented the St. Louis County Economic Council in the clean up and redevelopment of Region 7, Lemay Riverfront Brownfield Redevelopment Project, also known as the River Front Casino project. The land previously owned by the Air Force, was cleaned up and redeveloped into an entertainment area for the benefit of the surrounding community, bringing more than 1,000 new jobs to the region and $375 million in local investment.

Facing the Legal Scrutiny of “Green” Marketing Webinar Recording

In recent years, more companies have distinguished their products by touting their environmental benefits. “Green” branding of this sort faces legal scrutiny from competitors, consumers, and federal and state governments in matters where the advertising was considered deceptive or false.

Supreme Court Restricts “Arranger” Liability; Lower Courts Fall in Line

Thanks to a seminal 2008 decision by the United States Supreme Court in Burlington Northern and Santa Fe Ry. v. US Railroad 129 S. Ct. 1870 (2009), federal courts have begun restricting the concept of “arranger liability” under the Superfund Law.

Fight Over Bill to Bar EPA Regulation of GHG to Slow 2011 Approval of Appropriations Bill?

On February 2, 2011, representatives Fred Upton (R–MI) and Ed Whitfield (R–KY) released Discussion Draft Bill, H.R.____ “Energy Tax Prevention Act of 2011” (the Bill) which would amend the Clean Air Act to prohibit EPA from regulating greenhouse gas (GHG) emissions. In general, the Bill prohibits EPA from taking action to regulate GHG emissions to address climate change and would repeal certain rules and previous EPA actions, including EPA’s December 15, 2009 GHG endangerment findings under the Clean Air Act, the Prevention of Significant Deterioration (PSD) GHG Tailoring Rule, the authority to issue PSD permits containing GHG emissions limitations, or any other federal action applying a stationary source permitting requirement for GHG emission standards relating to climate change concerns.

“Renovate Right” Lead-Based Paint Hazards Reminder

The U.S. Environmental Protection Agency has set October 24 to 30, 2010 as National Lead Poisoning Prevention Week. One of EPA’s objectives for this yearly exercise is to remind people of the rules and practices established by EPA to help prevent lead poisoning. This year’s lead poisoning prevention week comes as EPA resumes enforcement of its “Renovation, Repair and Painting” rule, also known as the “Renovate Right” or “RRP” rule.

Will You Be Ready When the New Clean Air Act Regulations Hit Your Company?

While much recent attention under the Clean Air Act has focused on what Congress or EPA may do to control greenhouse gas emissions, the business community must not overlook other significant new air regulations for traditional air pollutants, including nitrogen oxide, sulfur dioxide, mercury, carbon monoxide, particulates, and ground-level ozone. These have the potential to affect thousands of businesses of all sizes, dramatically and quickly.

Effective Public and Private Partnership Allows for Expedited Cleanup and Redevelopment of Former Defense Site

A Midwestern city was trying to expeditiously redevelop an approximately 3,000 acre site by implementing a new urbanism concept focused on mixed residential, commercial, civic and educational site use. In the 1940’s, the U.S. Army had operated a large ammunition facilities on this site. As a result of historic onsite disposal activities, portions of the site showed some low-level contamination, and a fifty acre site parcel owned by the City was perceived by the public to be more heavily contaminated.

“Green” Leases Pose New Issues for Businesses

Eco-considerations are changing the way commercial leases are written. In a rapidly-changing environment, businesses are becoming more focused on the interplay of energy and environmental issues and how they impact both short-and long-term costs. As with many endeavors, “green” concepts have spilled over into commercial real estate through the development of green buildings and green leases.

Scott Brown’s Election – One More Set-Back for Climate Change Legislation?

When Scott Brown was elected to fill Senator Kennedy’s senate seat, news reports highlighted the impact on health care legislation and the loss of the filibuster-proof sixty vote Democratic majority in the Senate. In environmental circles, however, many commentators pointed out the potential impact on climate change legislation.

Corps of Engineers Approves Retail Development in Wetlands Area, Addresses Wichita Neighborhood Flooding

A comprehensive drainage study found the City of Wichita needed additional storm water detention capacity on a particular 80-acre parcel of land immediately upstream of several residential communities in order to prevent flooding. The upstream property was privately owned, and the owner, Spencer Fane’s client, preferred to sell the property to a private developer. Obtaining the property by eminent domain would have been lengthy and costly for the City.

EPA News Release (Region 7): Grant of $75,000 to Help Anhydrous Ammonia Facilities in Missouri

EPA has awarded the Missouri Department of Agriculture (MDA) and Missouri State Emergency Management Agency (SEMA) a total of $75,000 to assist with outreach, education and implementation of the Clean Air Act’s Risk Management Program. All fertilizer facilities that handle, process or store more than 10,000 pounds of anhydrous ammonia are subject to EPA’s chemical safety requirements.

The 2008 8-Hour Ozone Standard: 0.075 ppm

On May 27, 2008, the 8-hour ozone standard changed from 0.084 ppm to 0.075 ppm. This change triggered an attainment designation process by which Missouri submitted recommendations to EPA outlining proposed area boundaries and classifications. Missouri recommended that counties in the Kansas City and St. Louis metropolitan areas, as well as Ste. Genevieve and Perry counties south of St. Louis, be designated nonattainment areas under the new 0.075 ppm standard.

The U.S. Supreme Court Sets Limits on Environmental Superfund Liability

On May 4, 2009 the United States Supreme Court issued its third Superfund decision in five years: Burlington Northern v. United States, — S.Ct. — (2009). The Court continues the “plain language” focus it began in 2005 with Cooper Industries, Inc. v. Aviall Services, Inc., 125 S.Ct. 577 (2005), and rejects the Ninth Circuit’s attempt to expand CERCLA “arranger” liability to reach Shell Oil Company, a supplier/seller of an unused, useful pesticide product which ultimately contaminated a distribution site via known spills and leaks on the part of the distributor. This opinion also provides the Court’s first pronouncement on when and how the harm at a Superfund site is divisible and not to be imposed on a joint and several, 100 percent basis. The Court reinstates a district court’s determination that two railroads, who owned only part of the distribution site for a portion of the site’s operational life, would be liable for 9 percent of the site’s cleanup costs instead of the joint and several liability (100 percent of the costs) imposed by the Ninth Circuit.

Is Anything The Matter With Kansas? One State’s Struggles With Climate Change

It was the proverbial shot heard around the world in the escalating war of words regarding coal-fired power plants and climate change: On October 18, 2007, the Secretary of the Kansas Department of Health and Environment denied an air permit to two proposed coal-fired generating units, citing only potential carbon dioxide emissions and concerns about climate change as the reasons. It was the first time a government agency in the United States had relied on carbon dioxide emissions to deny such a permit. This article examines that decision, the ensuing legal and legislative maneuverings, and the next steps.

EPA Tells California And 14 Other States “No” On Request To Regulate Greenhouse Gases From Automobiles

On December 19, 2007, EPA denied California’s 2005 request to impose greenhouse gas emission controls on new motor vehicles. California filed the waiver request based on claimed injuries to the state’s coastlines, snow pack and air quality caused by global climate change.

Federal Appeals Court Rejects EPA Mercury Cap And Trade Rule For Power Plants

On February 8, 2008, the D.C. Court of Appeals ruled that EPA violated Section 112 of the Clean Air Act when it removed electricity generation power plants from the list of sources of airborne mercury pollution, then attempted to control mercury pollution from those same power plants by a voluntary cap and trade program.

Omnibus Appropriations Act Requires Mandatory Reporting of Greenhouse Gas Emissions In All Sectors Of U.S. Economy by June, 2010

On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008, H.R. 2764. This omnibus spending bill appropriated fiscal year 2008 (October 2007 through September 2008) funds for almost all domestic spending programs, including EPA.

President Bush Signs 2007 Energy Independence And Security Act

On that same Dece,ber 19, 2007, President George Bush signed into law the Energy Independence and Security Act of 2007. The Act covers 16 titles and 317 pages. Read more here on some of the highlights of the Act:

Wetlands Regulation: A Roadmap Through the Maze

The presence of regulated wetlands in a project area can be a significant obstacle to businesses and local communities. Failing to account for wetlands when planning a project can result in long delays and increased expenses. What is more, a violation of wetlands law, even if inadvertent, will subject the violator to civil and criminal penalties, as well as the cost of restoring the impacted wetlands.

EPA Regulations Must Try to Protect Fish and Other Aquatic Critters Caught in Power Plant Cooling Water Intake

In issuing Phase II regulations under the Clean Water Act (CWA) for power plant cooling water intakes, U.S. EPA found that it would cost too much to require recirculation systems or extensive fish protection. The Second Circuit’s recent Riverkeeper, Inc. v. EPA decision may change that for 540 power plants.

RCRA Citizen’s Suit Compels Multi-Million Dollar Investigation Of Mercury in River

Frustrated citizens and environmental interest groups often turn to the citizen’s suit provisions of the Resource Conservation and Recovery Act (RCRA) for relief. Those attempts may have become easier under the First Circuit’s December 2006 decision in Maine People’s Alliance v. Mallinckrodt.

Supreme Court Says EPA Must Regulate Greenhouse Gases From Automobiles Or Give Very Good Reasons Not To Regulate

On April 2, 2007, the United States Supreme Court issued its 5-4 decision in Massachusetts v. EPA, and effectively instructed the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide (CO2) and other “greenhouse gas” exhaust emissions from new motor vehicles.

Supreme Court Tells Industry That Annual Emission Levels, Not Hourly Ones, Will Trigger PSD Regulatory Controls

On that same day the Supreme Court issued its landmark decision in Massachusetts v. EPA, the Court also issued another important Clean Air Act (CAA) case, Environmental Defense v. Duke Energy Corp. The 9-0 opinion holds that the CAA standard for triggering prevention of significant deterioration (PSD) permit requirements is modification of a facility with a potential increase in annual levels of air emissions. Before this ruling, electric power companies and others argued that PSD requirements were only triggered if a modification could increase hourly air emissions.

Supreme Court Says “Yes,” Private Parties Can Sue Under Superfund To Recover Voluntary Cleanup Costs

On Monday, June 11 the United States Supreme Court issued its long-awaited decision in United States v. Atlantic Research Corp., –- S.Ct. –- (2007). The Court’s decision confirms that private parties may sue other persons, including the United States and state governments, to recover costs spent voluntarily (i.e., without the party first being the subject of a cost recovery lawsuit or entering into a settlement with the government), to perform cleanup work at environmentally contaminated properties.

Private Right to Sue for Cleanup Costs under Superfund — Score in Appellate Circuits 3-1, with Supremes to Referee

In January, 2007 the United States Supreme Court agreed to review a case that should decide, once and for all, the circumstances under which a company that performs environmental cleanup work at a contaminated property has the right to sue other co-responsible parties to make them help pay for that cleanup. This decision should bring more certainty to a critical issue that affects almost every hazardous waste cleanup and industrial property transaction. In the meantime, parties involved with such matters will have to try to make the best decisions they can with rules that are sometimes unclear.

Windfall Liens

Congress had a good idea when it belatedly, and surprisingly, reformed parts of Superfund effective January 11, 2002. The main obstacle to Brownfields redevelopment has been the uncertain Superfund liability that potentially hangs over the head of any site owner – including a new buyer. So Congress exempted new buyers –”bona fide prospective purchasers,” or BFPPs – of contaminated sites from Superfund liability.

The Role of Outside Legal Counsel in Clean Air Act

The Clean Air Act Amendments of 1990 required EPA and the state regulators to issue a new form of operating permit to a large number of facilities. These programs are beginning to take effect, and many companies already are working to prepare applications. At Spencer Fane Britt & Browne (SFB&B) our clients often ask whether and to what extent they should use legal services in connection with that process. The principal questions, and basic answers, are set out below.