Category: EPA

Kelley Drye & Warren LLP
Joseph J. Green

February 13, 2020

EPA has agreed, in a draft settlement, to conduct a rulemaking regarding the establishment of regulations to address potential “worst case” spills of hazardous substances similar to the existing “Facility Response Plan” (FRP) program for oil.  In a consent decree reached with the Natural Resources Defense Council (NRDC) and other environmental groups, published in the Federal Register on February 3, the agency agreed to issue a proposed rulemaking within two years of the final date of the consent decree “pertaining to the issuance of the Hazardous Substance Worst Case Discharge Planning Regulations.”  A final rule would be required within 30 months of the proposal.

The consent decree follows litigation filed by the environmental groups in March 2019:

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Troutman Sanders LLP
Chuck Sensiba, Elizabeth J. McCormick and Morgan M. Gerard

August 13, 2019

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects. EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.” The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

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Hunton Andrews Kurth LLP
Timothy L. McHugh

May 9, 2019

In a lawsuit recently filed in the Southern District of New York, a group of environmental plaintiffs allege that, for nearly 30 years, the federal Environmental Protection Agency (EPA) has failed to develop worst-case hazardous substance discharge, or spill, regulations under Section 311(j)(5) of the Clean Water Act (CWA). This suit comes on the heels of EPA’s June 2018 proposal not to develop a general hazardous substance spill program under CWA § 311(j)(1) (a provision related to the Spill Prevention, Control and Countermeasure (SPCC) Rule well known to industrial facilities storing oil) because of the many other programs EPA believes already regulate the prevention and containment of hazardous substance spills. That proposal is expected to be finalized in August 2019 under a 2016 consent decree in which EPA agreed to evaluate the need for general rules governing the prevention and containment of hazardous substance spills. The new lawsuit narrowly focuses on worst-case hazardous substance spills and the need for corresponding facility response plans.

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Hunton Andrews Kurth LLP
J. Tom Boer, Samuel L. Brown, Todd S. Mikolop and Alexandra Hamilton

February 12, 2019

Last week, the US Environmental Protection Agency (EPA) released its annual enforcement results for the 2018 fiscal year (ranging from October 1, 2017, to September 30, 2018). The report, prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), highlights the results of the agency’s civil and criminal enforcement of the nation’s federal environmental laws over the past year. The 2018 results mark the first full fiscal year of enforcement results, including inspections and compliance evaluations, under the Trump administration. A statement in the report from Susan Bodine, the Assistant Administrator for OECA, summarizes EPA’s enforcement priorities, explaining “[i]n fiscal year 2018, we continued our focus on expediting site cleanup, deterring noncompliance, and returning facilities to compliance with the law, while respecting the cooperative federalism structure of our nation’s environmental laws.”

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