Category: EPA

Foley Hoag LLP
Seth D. Jaffe

August 11, 2016

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.”  The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are applicable.

Previously, EPA’s Clean Air Act regulations specifically required EPA to “assure fair and uniform application [of the CAA]  by all Regional Offices.” As I previously discussed, this regulation came back to haunt EPA in National Development Association’s Clean Air Project v. EPA, when the Court said that, while EPA might otherwise be free to engage in what is known as “intercircuit nonaquiescence”, EPA is bound by its own regulations, so that, at least under the CAA, it is required to follow adverse judicial decisions nationally, in order to maintain regional consistency.

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Troutman Sanders LLP
Carroll W. McGuffey III and Mason Buck Dixon

July 8, 2016

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.

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Dykema PLLC
Thomas B. Alleman, John A. Ferroli, Grant P. Gilezan, Mark D. Jacobs, Todd C. Schebor and Keith A. Shuley

Building contractors and developers should be aware of the U.S. EPA’s newly proposed National Pollution Discharge Elimination System (NPDES) general permit regulating stormwater discharges from construction activities. The draft 2017 Construction General Permit (CGP) is proposed to replace the 2012 version, which is set to expire on February 16, 2017. Like the 2012 version, the 2017 draft permit generally applies to construction site operators disturbing one or more acres of land (or less than one acre, but part of a larger common plan or development).

The proposed draft permit makes the following noteworthy changes to the 2012 permit:

1. Prohibits hazardous substances, such as paint or caulk containing polychlorinated biphenyls (PCBs), from authorized non-stormwater discharges of external building washdown waters;
2. Requires permittees to include the U.S. EPA’s contact information in the public notices that are already required to be posted in a prominent location near construction sites;
3. Requires permittees to cover or use another method of temporary stabilization for inactive soil stockpiles and land clearing debris piles where the piles will be unused for 14 or more days (the 2012 CGP only requires coverage “where practicable”);
4. Requires permittees to keep waste container lids closed (or provide some other secure cover where containers do not have lids);
5. For demolition of structures with at least 10,000 square feet of floor space built or renovated before 1980, requires permittees to implement controls to minimize the exposure of PCB-containing building materials to precipitation and stormwater; and
6. Requires permittees to state on their Notice of Intent (NOI) form the type of construction activities that will be involved.

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Greensfelder Hemker & Gale PC
Shannon L. Haney

March 31, 2016

The U.S. Environmental Protection Agency (EPA) recently announced updated and additional National Enforcement Initiatives that will be a focus for EPA enforcement in the next few years. Below is a quick summary of the initiatives and action items companies can take now to avoid receiving violations from EPA or state environmental agencies.

New enforcement initiatives

1. Risk management planning: One of EPA’s new initiatives is focused on reducing the risk of accidental releases at industrial and chemical facilities. This initiative is likely in response to the increasing number of large explosions in the last few years, including the one at the West Fertilizer facility near Waco, Texas.

The initiative will include increased EPA focus on proper maintenance, updating and review of Risk Management Plans (RMP) for facilities. EPA’s RMP Rule requires certain facilities that store a threshold quantity of certain hazardous substances to have an up-to-date plan in place and submitted to EPA.

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Spencer Fane LLP
Andrew C. Brought

January 2, 2016

Businesses and companies seeking to qualify for penalty mitigation and relief by submitting voluntary self-disclosures under EPA’s Audit Policy need to be aware of significant changes and modifications that took effect in December 2015.

As a result of the large number of self-disclosures received by EPA each year, primarily Tier II Reporting violations under the Emergency Planning and Community Right-to-Know Act (“EPCRA”), the agency is now requiring companies to utilize a centralized web-based “eDisclosure” portal to process requests for penalty mitigation. While there are no substantive changes to EPA’s April 2000 Audit Policy and the nine conditions necessary for penalty mitigation, 80 Fed. Reg. at 76480, the new changes will require businesses to submit disclosures online and then certify compliance within 60 or 90 days, depending on the circumstances.

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Frost Brown Todd LLC
Philip J. Schworer and Joseph M. Reidy

October 13, 2015

See EPA UST Links at the end of this article

EPA has issued new rules for the installation, operation, and maintenance of underground storage tanks (USTs).  The changes include:

– removing previous deferrals for certain USTs
– establishing new construction requirements for newly installed UST systems
– adding new notification requirements
– strengthening operator training procedures
– imposing regular equipment testing and inspections
– creating a “safe harbor” when using established codes of practice

Previously Deferred USTs

USTs that stored fuel for emergency power generators, were constructed in the field, or were part of an airport fuel hydrant system were previously exempted from some or all of the EPA’s requirements. With the new rule, owners and operators of USTs that store fuel for emergency power generators will need to install and operate release detection. Owners and operators of field constructed tanks and fuel hydrant systems must follow the requirements for release reporting, response and investigation, closure, financial responsibility and notification.

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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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