WOTUS: SCOTUS, POTUS . . . LOTUS?

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Beveridge & Diamond PC
W. Parker Moore

November 21, 2014

It was inevitable I suppose.  In a town where every policy discussion reaffirms the lampooning it receives in HBO’s “Veep,” it was only a matter of time until the EPA/Army Corps’ proposed rule on the scope of jurisdiction under the Clean Water Act earned an insider Washington acronym.  After all, “WOTUS” is much cooler than saying “waters of the United States.”  Plus it’s a real time-saver – imperative when referring to a rule eight years in the making.

As everyone knows by now, the massive WOTUS proposal grew out of the remarkably timid and confusing Rapanos ruling by the Supreme Court of the United States, “SCOTUS.”  There, the Justices split 4-1-4 when presented with a straightforward question:  “Are remote, non-navigable waters and wetlands subject to federal jurisdiction under the Clean Water Act?”

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EPA’s Long-Awaited Fracking-Wastewater Rules Move a Step Closer to Publication

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Weil Gotshal & Manges LLP
Caroline Toole

December 4, 2014

New regulations are on the horizon for wastewater produced as a byproduct of hydraulic fracturing (“fracking”). In 2012, fracking operations produced over 280 billion gallons of wastewater.  This water can be sent to treatment plants, re-injected deep into the earth in “disposal wells,” or processed and re-used in fracking operations.  In response to the growth of fracking, the EPA recently submitted to the White House Office of Management and Budget a national pretreatment standard for fracking wastewater. The standard would apply to fracking wastewater that is sent to municipal or centralized treatment plants, but not to water stored in disposal wells.  The EPA believes that the pretreatment standards will assist entities in meeting the EPA’s existing effluent limits under the Clean Water Act.

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Clean up a Property? The SOL for your CERCLA contribution action may begin to run a lot earlier than you thought

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Phillips Lytle LLP
Myriah V. Jaworski

December 4, 2014

The statute of limitations (“SOL”) for seeking contribution under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is three years from the date of “entry of the judicially approved settlement.” But what happens if that judicially approved settlement was not based on CERCLA, and did not resolve CERCLA claims? According to a recent federal court decision, so long as the settlement resolved environmental liability for costs related to a cleanup action – even if that cleanup action was taken pursuant to a state superfund law or another federal statute like the Clean Water Act – CERCLA’s three year statute of limitations for contribution will apply.

The facts of the case, ASARCO LLC v. Atlantic Richfield Co. (D. Mont., No. 12-cv-53, Aug. 28. 2014), are not uncommon in the world of environmental liability and have some in the field wondering if the decision will pave the way for contribution actions under federal statutes that do not contain express contribution provisions.

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Coal Ash Regulation Update

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Burr & Forman LLP
Ronald W. Farley

December 2, 2014

The U.S. EPA’s efforts to develop a new regulatory path for coal ash (“Coal Combustion Residuals” or “CCR”) by regulating the material either as a hazardous waste or as a solid but non-hazardous waste, are nearing a conclusion. The deadline for EPA to announce a final decision is December 19. As we noted in February, this date was fixed by a consent decree filed in the U.S. District Court for the District of Columbia on January 29 of this year, and a press release at that time by the American Coal Ash Association provides a link to the consent decree. Statements by EPA Headquarters staff in a recent meeting with State officials at Region 4 offices in Atlanta indicate that EPA is intent on meeting the deadline.

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