EPA Budget Cuts: Welcome Change or Cause for Concern?

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Stradley Ronon Stevens & Young
Andrew Levine and Catherine Ward

July 25, 2017

The Trump administration’s proposed budget cut of approximately 25 percent of the Environmental Protection Agency’s enforcement budget ($129 million) is consistent with candidate Trump’s platform targeting the EPA for failing to appropriately favor crucial business interests against what he perceives as environmentalists hellbent on the dismantlement of the U.S. industrial base. Whether we are facing the cataclysmic disintegration of long-standing federal environmental programs, or logical budget cuts related to streamlining and modernizing an over-bulked EPA largely depends upon the vitriol of the media source reporting the news, but it is undeniable that cutting enforcement is a direct attack on the foundation of all environmental laws; the perception that a violator will be held accountable in some way.

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Is Vapor Rising? Challenges of Phase I ESAs

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Dinsmore & Shohl LLP
Steve N. Siegel

August 29, 2017

For the first time in ASTM E1527-13 (E1527-13),1 ASTM required the environmental professional (ENV Pro) to actively conduct a vapor survey.2 But it is difficult to explain how an ENV Pro should conduct a vapor survey, resulting in potentially deficient Phase I Environmental Site Assessments (Phase I ESAs) being provided to entities purchasing and investing in real property. This article attempts to explain the issues faced by ENV Pros as they attempt to meet the requirements of E1527-13 and the All Appropriate Inquires important to real estate purchasers by performing a non-invasive review of the property at issue and the files and databases that (allegedly) contain all there is to know about the property.

 History of Vapor Issues

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One Person Who Could Significantly Delay Your Infrastructure Project

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Hunton & Williams LLP
Nick A. Dantonio

September 12, 2017

The Keeper.

For some, the name may conjure images of a character from Game of Thrones, protecting the realm from the evil to the north. But, the Keeper is actually a fairly important National Park Service (NPS) official and has a significant role under the National Historic Preservation Act (NPHA)—the Keeper of the National Register of Historic Places.

The Keeper is responsible for the National Register—“an authoritative guide … to identify the Nation’s cultural resources and to indicate what properties should be considered for protection from destruction or impairment.” 36 C.F.R. § 60.2. “Properties” can include anything from sites and structures to “significant objects.” There are over 90,000 individual properties currently listed in the National Register, each of which can introduce a regulatory hurdle to clear before nearby construction may begin on a project your company plans to undertake. Some of these properties are widely recognized. The majority, however, are relatively unknown outside of the area in which they are located.

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It’s Tradition! Pollution Exclusion Applies Only to Traditional Environmental Contamination: New Cases from Washington and Connecticut

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Brouse McDowell
Lucas M. Blower

September 12, 2017

In general, a pollution exclusion precludes coverage for liabilities arising from the “discharge, dispersal, release or escape” of “irritants, contaminants or pollutants.” The exclusion was incorporated in commercial general liability (CGL) insurance policies in response to the massive environmental liabilities incurred by companies in the 70’s and 80’s.

And the exclusion has been effective, by in large, in precluding coverage for liabilities that are the result of traditional environmental contamination. But, for some insurers, that was not enough. These insurers argued that the pollution exclusion leaches out in new directions, applying not only to traditional environmental contamination, but extending to apply in new, non-pollution contexts as well.

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