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Environmental Permitting

Environmental permitting

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 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 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.

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

On June 29, 2015, the United States Supreme Court announced its decision in Michigan v. Environmental Protection Agency, holding that EPA unreasonably interpreted a provision of the Clean Air Act regarding the regulation of power plants under the EPA’s Mercury and Air Toxics Standard (MATS) (also referred to as the Utility MACT).

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

On April 10, 2015, the U.S. Court of Appeals for the Eighth Circuit gave a northwestern Minnesota peat mining operation something the company wanted very much — judicial review of a wetlands jurisdictional decision issued by the U.S. Army Corps of Engineers. Hawkes Co., Inc., et. al v. U.S. Army Corps of Engineers, slip op. No. 13-3067 (8th Cir. April 10, 2015). In so doing, the Eighth Circuit built on the U.S. Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), which had made Clean Water Act administrative orders subject to court scrutiny, and continued the Eighth Circuit’s focus on curtailing what it sees as government agency overreaching, as recently expressed in Iowa League of Cities v. EPA, 711 F.3d 844, 868 (8th Cir. 2013).

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

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

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

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

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.

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).

New Final Phase I ESA Standard E1527-13 Issued

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

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

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

Colorado Court Sides With Agency in Withholding Documents at Superfund Site

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

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

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

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

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

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

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

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.

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.

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).

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

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

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

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

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.

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).

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”).

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.

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.

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 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.

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.

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.

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.