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Environmental Compliance and Enforcement Defense

Environmental compliance and enforcement defense

EPA and OSHA Increase Civil Penalties – Days Before New Administration

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

EPA Issues Final Hazardous Waste Generator Improvements Rule

On November 28, 2016, EPA published the final version of the Hazardous Waste Generator Improvements Rule (the Rule) in the Federal Register. Promulgated under the Resource Conservation and Recovery Act (RCRA), the Rule updates EPA’s regulations governing generators of hazardous waste, most of which EPA promulgated in the 1980s. The Rule significantly revises the hazardous waste generator requirements.

EPA Releases National Enforcement Initiatives

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

EPA Revamps Voluntary Self-Disclosure Audit Policy

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

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

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

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

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

EPA Revises its Supplemental Environmental Project – SEP Policy

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

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

In a recent January 2015 Memorandum to EPA’s Regional Enforcement Managers from Cynthia Giles, EPA Assistant Administrator for Enforcement, EPA is touting its Next Generation Compliance strategy as “an integrated strategy” intended to “bring together the best thinking from inside and outside EPA.” 

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

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

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

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

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

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

OSHA Cites Frozen Food Manufacturer for Anhydrous Ammonia PSM Violations

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

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

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

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.

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.

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

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

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.

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).

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.

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

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

New Electronic DMRs for Missouri NPDES Permits

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

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

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

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

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

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.

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

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

OSHA Cites Fracking Company for Confined Space Worker Fatality

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

DOT-PHMSA Increases Civil Penalties for HazMat Violations

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

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

On April 4, 2013, the Fourth Circuit handed down its much-awaited decision about what a bona fide prospective purchaser (BFPP) of contaminated property must do to retain the Brownfields defense to Superfund liability. In PCS Nitrogen Inc. v. Ashley II of Charleston LLC, No. 11-2087, slip op. at 31 (4th Cir. April 4, 2013), the Court held that a property redeveloper, Ashley II, was liable as a current owner potentially responsible party (PRP) for soil contamination at the former phosphate fertilizer plant despite its “all appropriate inquiry” pre-purchase investigation of past environmental conditions at the facility. Ashley II knew that old sumps at the property contained contaminated water, yet for years did nothing to clean out or close the sumps. This failure to stop a continuing release violated the post-purchase “due care” or “reasonable steps” requirements of the BFPP defense, and negated its applicability to Ashley II.

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.

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.”

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.

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.

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.

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.

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.

Kansas Exempts Specific Pharmaceutical Wastes from Hazardous Waste Regulations

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

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

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

EPA 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.

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.

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.

Recent Developments: CERCLA

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

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.

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.

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 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.

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.