The Environmental Regulatory Reforms Manufacturers Want Most

Husch Blackwell LLP
Charles E. Merrill

June 14, 2017

U.S. manufacturers and their trade associations have submitted comments to the U. S. Department of Commerce (DOC) on changes they would like to see in environmental regulations. President Trump’s Memorandum of January 24, 2017, “Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing”[1] directed the DOC to conduct outreach concerning the impact of Federal regulations on domestic manufacturing. This article reviews manufacturers’ responses to DOC on environmental issues.

The DOC sought input on:

The impact of Federal permitting requirements on the construction, expansion, or operation of domestic manufacturing facilities, and possible Federal actions to streamline permitting. Regulations that adversely impact domestic manufacturers, including compliance burdens for facility construction, expansion, or operation.[2]

DOC asked about the number of permits required; the time required to obtain permits; duplication or overlapping of permits; the most onerous features of permits; and suggestions for improvement of the permitting process. DOC received over 170 comments by its March 31, 2017 deadline on a wide range of federal regulations. The comments are available at: S&D=DOC-2017-0001.

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Monetizing Vacant Land Through Mitigation Banking

Sullivan & Worcester LLP
Jerome C. Muys, Jr.

June 13, 2017

A mitigation bank is a wetland, stream, or other habitat area that has been restored, established, enhanced, or (in certain circumstances) preserved for the purpose of providing compensation for unavoidable impacts to such natural resources. When a corporation or other entity undertakes these activities, it can generate “compensatory mitigation credits” (“CMCs”), which in recent years have significantly increased in value. Corporations and other owners of brownfield or dormant/underutilized properties are increasingly using these lands to create mitigation banks in order to generate CMCs that can be sold into the mitigation market.

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Waters of the United States Rule Update

Dinsmore & Shohl LLP
Anna Skinner

May 30, 2017

One of the first environmental measures the Trump administration took was issuing Executive Order 13778 directing the Environmental Protection Agency (EPA) to review and either rescind or revise the 2015 Clean Water Rule: Definition of “Waters of the United States” (WOTUS Rule). The WOTUS Rule was promulgated under the Clean Water Act (CWA), which defines the scope of CWA jurisdiction as “navigable waters of the United States.” The scope of “navigable waters of the United States” has been hotly debated in several court cases since the CWA was enacted. The WOTUS Rule sought to define which rivers, streams, lakes and marshes fell under the definition of “navigable waters of the United States.” See 80 Fed. Reg. 37054 (June 19, 2015). The WOTUS Rule took the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States that navigable waters include any water body that has a “significant nexus” to navigable rivers and seas, including through biological or chemical connections. See 547 U.S. 715, 759 (2006).

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Administrator Pruitt Seeks Superfund Overhaul

K&L Gates
Cliff L. Rothenstein, Ankur K. Tohan, David L. Rieser and Kathleen L. Nicholas

May 30, 2017

In a May 22 memo, the Environmental Protection Agency (“EPA”) Administrator Scott Pruitt created a task force to look at ways of streamlining the Superfund program. The task force, to be led by senior advisor Albert Kelly, shall include the heads of “the Office of Land and Emergency Management, the Office of Enforcement and Compliance Assurance, the Office of General Counsel, EPA Region 3 (as the lead region for the Superfund program) and other offices as appropriate.” The initiative’s goals are to expedite the cleanup process and reduce the burden on compliant parties. Within 30 days, the task force is charged with providing a detailed set of recommendations on actions that the agency can take to:

  • streamline and improve efficiencies within the program;
  • overhaul or streamline incentives for private investment at sites;
  • improve risk-management and consistency in remedy selection;
  • “Utilize alternative and non-traditional approaches for financing site cleanups, as well as improvements to the management and use of Superfund special accounts;” and
  • improve stakeholder relations and reduce administrative costs.

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