EPA Seeks Comment on National Enforcement Initiatives

King & Spalding LLP
Granta Nakayama, Ilana Saltzbart & Cynthia AM Stroman

September 17, 2015

On September 15, 2015, EPA solicited public comment on its upcoming cycle of National Enforcement Initiatives (NEI) for fiscal years (FY) 2017- 2019.  EPA is proposing to adopt three new enforcement initiatives and is requesting input as to whether the existing six NEI should continue as enforcement priorities. Notably, the new initiatives would target a large swath of industrial sectors, including: chemical plants, refineries, bulk storage facilities, hazardous waste facilities, large quantity generators of hazardous waste, mining, food processing, primary metals manufacturing, and certain other industrial facilities. The initiatives continue to dovetail with the Agency’s programmatic interest in addressing environmental justice. The notice is also noteworthy for proposing to include surface water discharges from food processors in a national enforcement initiative.  EPA has not added a new enforcement initiative in many years (since before FY 2011). Thus, it seems likely that EPA will adopt one or more of the new initiatives identified in the proposal.  Comments must be received no later than October 14, 2015.

EPA has identified a number of emerging and existing environmental issues that could be subjected to heightened federal enforcement scrutiny in the next three years through the NEI paradigm. According to EPA, these environmental problems are national in scope, based largely on noncompliance with existing environmental requirements, and would benefit from federal enforcement attention.

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What Real Estate Developers Need To Know About Insurance Coverage

Dickstein Shapiro LLP
Charrise L. Alexander

September 10, 2015

As the economy across the United States continues its slow improvement, many cities across the nation are experiencing a boom in real estate development. From residential to public transit to public works, developers are bidding on and undertaking large projects. Before beginning any new project, it is important that a developer understands the extent of its insurance coverage and ensures that it has adequate insurance to address the particularly unique circumstances involved with real estate development.

While most developers have a commercial general liability policy, such liability policies, even though broad in scope, may not fully protect a developer against all of the risks it may face during development. For example, commercial general liability policies respond to claims involving bodily injury and property damage to third parties, but often do not provide coverage for damage to the developer’s own property.

Below are four types of insurance every real estate developer should consider before beginning a new development project:

Real Estate Development Professional Liability Insurance

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New Federal UST Regulations Going into Effect Soon in California

Paul Hastings LLP
Robert P. Hoffmann and Donald L. Ristow

September 14, 2015

On July 15, 2015, the Environmental Protection Agency (hereinafter, “EPA”) published its final rule in the Federal Register adopting revisions to the federal regulations governing underground storage tanks (“USTs”). These changes are the first significant revisions to the UST regulations since 1988.[1] The updated regulations are designed to reduce the incidence and impact of the more than 6,000 releases discovered annually from USTs.[2] To this end, the EPA added comprehensive new operation and maintenance requirements, as well as new secondary containment provisions aimed at preventing and detecting UST releases. The revisions are effective October 13, 2015, and include a series of phased compliance deadlines extending from 2015 to 2018.

Importantly, the revised regulations add substantive requirements for existing USTs operated in California that apply in parallel to and in certain instances go beyond the requirements of California’s existing UST program. This unique dual application of both federal and state requirements results because California has not obtained formal EPA approval for its UST program, instead traditionally enforcing its own historically more stringent state requirements.[3] As detailed further by the State Water Resources Control Board in an August 20 letter addressing the new regulations, owners and operators of existing USTs in California should prepare immediately to comply with the requirements described below, which must be met starting after October 13 of this year.[4]

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EPA and States Locked in Funhouse Litigation Over WOTUS Rule

Verrill Dana LLP
Gordon R. Smith

September 15, 2015

Originally posted on www.environmentallawupdate.com

Eighteen states that are suing the EPA and the Army Corps of Engineers to block the regulation attempting to identify jurisdictional waters of the United States under the Clean Water Act have filed a motion for a preliminary injunction with the U.S. Court of Appeals for the Sixth Circuit. At the same time, the 18 states filed a motion to dismiss the litigation, arguing that the Sixth Circuit does not have original jurisdiction over the challenges to the WOTUS rule and that the challenges should be heard at the district court level.

The motions before the Sixth Circuit follow a preliminary injunction issued on August 28 by the U.S. District Court for North Dakota. The scope of that injunction was clarified in a September 4 order from the district court as applying only in the 13 states that are plaintiffs in that litigation. The district court did not impose its preliminary injunction nationwide, as urged by the plaintiffs, primarily out of deference to other federal courts, in particular the Sixth Circuit, where many, but not all, of the challenges to the WOTUS rule have been consolidated by the U.S. Judicial Panel on Multidistrict Litigation.

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