EPA and States Locked in Funhouse Litigation Over WOTUS Rule

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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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EPA Finalizes Ambitious Clean Power Plan

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Paul Hastings LLP
Kevin Poloncarz & Ben Carrier

August 7, 2015

On August 3, 2015, the Environmental Protection Agency (hereinafter, “EPA”) released its final “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (the “Clean Power Plan” or “Final Rule”), a much-anticipated regulation to reduce carbon dioxide (“CO2”) emissions from existing power plants. Compared to the June 18, 2014 proposed Clean Power Plan (“Proposed Rule”, see 79 Fed. Reg. 34830 (June 18, 2014)), the Final Rule establishes more ambitious CO2 emission reduction goals while providing additional flexibility to affected electric generating units (“EGUs”) and states in meeting the Clean Power Plan’s goals. Along with the Final Rule, the EPA concurrently proposed a federal plan to implement the requirements of the Clean Power Plan in states that do not submit an approvable plan. The proposed Federal Plan also provides proposed model rules that states can adopt to facilitate interstate trading to achieve either their respective rate- or mass-based goals.

The Clean Power Plan is one of the boldest and most ambitious environmental regulations of our time and, for those reasons alone, is likely to be one of the most contested as well. Several states and coal producers already challenged the Proposed Rule in court, even before it was final, and are poised to challenge the Final Rule again, once it appears in the Federal Register. Sixteen states have already sought an administrative stay of the Final Rule pending resolution of litigation.

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EPA Announces Revised Rules for Underground Storage Tanks

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Synergy Environmental, Inc.
Robert J. May, P.E. CHMM

July 16, 2015

Late June, the USEPA published revisions to the Underground Storage Tank (UST) rules under 40 CFR 280 and 281.  The entire rule (120 pages) recently became available on the EPA Office of Underground Storage Tanks website . Below is a brief summary of the rule changes that a motor fuel retailer should become aware.

  1. Walkthrough inspections every 30 days   There is a heightened awareness for the operator to review spill prevention and release detection equipment on a routine basis. Spill bucket and overfill devices need reviewed to ensure proper operation.
    This change will be implemented within three years.
  2. Containment sumps – tank top and under dispensers – need tightness testing every three years. Spill buckets- the containment device at tank fill ports- will need to be hydrotested every three years. Electronic line leak detectors will now also be tested by a third party tester annually.
    These changes will be implemented within three years.
  3. Overfill prevention devices – ball floats will not be permitted to be replaced at current systems nor installed on new systems.   It would be prudent to install the flapper type fill port overfill device, replacing the ball float, within the next three years since all overfill devices must be tested every three years.
    This change is implemented immediately.
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EPA Takes Positions on Vapor Intrusion

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Seyfarth Shaw LLP
Jeryl L. Olson & Craig B. Simonsen

June 16, 2015

In a busy day for vapor intrusion, last week the U. S. Environmental Protection Agency made several announcements about vapor intrusion.

First, it announced it had submitted a draft rule to the White House OMB seeking to add vapor intrusion to the pathways evaluated under the Hazard Ranking Scoring (HRS) System for National Priority List (NPL) Superfund sites.   Additionally, EPA published two new sets of technical guidance on assessing vapor intrusion. One guidance document has been prepared for assessing vapor intrusion from leaking petroleum underground storage tank sites, and the other guidance document is aimed at assessing vapor intrusion for sites with non-petroleum contamination.

Draft Rule on Assessing Vapor Intrusion as Part of Site Hazard Ranking

With respect to EPA’s draft rule adding assessment of vapor intrusion to the Hazard Ranking Scoring process, this is the Agency’s second effort at adding the vapor intrusion pathway to the other types of pathways which are already considered in evaluating and then listing a site on the National Priorities List. The same version of the rule was previously submitted to, but then withdrawn from, OMB consideration.

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EPA is Improving Public Access to (your) Environmental Inspection and Compliance Data

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Seyfarth Shaw LLP
Andrew H. Perellis and Craig B. Simonsen

February 9, 2015

Marion Herz, the Chief of Staff for EPA’s Office of Compliance, just blogged that EPA has launched a new compliance website to “make it easier to stay informed about our work and to share tools that can help companies and others follow the law.”

Click here to view image.

Herz notes that the Enforcement and Compliance History Online (ECHO) database “lets you analyze compliance and enforcement data through dashboards, maps and charts. It also gives you access to other EPA tools designed to identify pollution sources, including greenhouse gases, wastewater discharges and toxic chemicals.”

Another related recent EPA blog discusses the Agency’s recent updates to the ECHO database, which provides information about environmental inspections, violations, and enforcement actions for EPA-regulated facilities. “As one of our most important and popular resources, ECHO houses information about more than 800,000 facilities nationwide, and last year, it was visited more than 2 million times.” Emphasis added.

Significant updates to ECHO include the ability for anyone with access to the Internet to download data to analyze violations at any of the 800,000 ECHO facilities, which data is now updated within the week.

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EPA Publishes Massive Final Definition of Solid Waste Rule

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Seyfarth Shaw LLP
Philip L. Comella , Patrick D. Joyce and Craig B. Simonsen

January 13, 2015

The U.S. Environmental Protection Agency’s struggle to distinguish between a waste and a recyclable material, dating back to its original May 19, 1980 rulemaking under the Resource Conservation and Recovery Act, takes its latest turn in the now-final Definition of Solid Waste rule (DSW rule), signed by Administrator Gina McCarthy on December 10, 2014. 80 Fed.  Reg. 1694 (January 13, 2015).

The new DSW rule will take effect six months after publication in the Federal Register. The 507 page final rule came as the result of a settlement between EPA and the Sierra Club over the EPA’s October 2008 rule on the same topic, in which the EPA liberalized the regulation of a form of recycling known as “reclamation.” Prior to the 2008 rulemaking, the EPA generally considered reclamation (the processing or regeneration of a material to recover a usable product) as akin to treatment, and therefore considered most materials destined for reclamation to be solid wastes.

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Boiler Owners Must Submit Notification to EPA by July 19, 2014

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Pierce Atwood LLP
Dixon P. Pike and Brian M. Rayback

July 9, 2014

If you own or operate a boiler, keep reading.

In December 2012, the U.S. EPA finalized changes to its National Emission Standards for Hazardous Air Pollutants for Area Source Boilers at 40 C.F.R. Part 63, Subpart JJJJJJ.  Under this regulation, owners or operators of virtually any boiler were required to conduct an initial tune-up by March 21, 2014, as described in a prior alert, and must now submit a notice of compliance status (NOCS) to EPA.

Boilers located at major sources of hazardous air pollutants* are not subject to the July 19 notice requirement.

Other exemptions:

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EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

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Perkins Coie LLP
Joanna M. Thies, Sloane A. Wildman and Aubri N. Margason

June 17, 2014

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response, Compensation, and Liability Act and its implementing regulations, 40 C.F.R. part 312. Amendments to CERCLA adopted in 2002 required EPA to publish regulations establishing standards and practices for conducting “All Appropriate Inquiries,” which is the process by which a party acquiring real property evaluates the site’s environmental conditions and potential for contamination. The party must follow these standards and practices to qualify for certain defenses from liability under CERCLA if a subsequent dispute arises concerning historical contamination at the site.  Under the existing regulations, the All Appropriate Inquiries investigation may be based on either the prior 2005 site assessment standard published by ASTM International or on the newer standard published by ASTM International in 2013. The proposed rule published today would eliminate the use of the prior 2005 standard.

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EPA Raises Civil Penalty Amounts

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Ogletree Deakins
Elizabeth B. Partlow
November 7, 2013
On  November 6, 2013, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register raising the maximum penalties that the agency can impose for certain violations of environmental laws.
A maximum civil penalty is prescribed in each of the statutes EPA administers. The most common maximum per-day penalty in environmental statutes is $25,000. For example, the Toxic Substances Control Act, the Clean Water Act, the Safe Drinking Water Act, the Resource Conservation Act, the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Emergency Planning and Community Right-to-Know Act all include a $25,000 penalty limit.

The Debt Collection Improvement Act of 1996 (DCIA), however, required EPA to review the civil penalties contained in the statutes that the agency administers every four years and adjust them for inflation according to a formula set forth in the DCIA. In compliance with the DCIA, EPA has previously made penalty adjustments for inflation in 1996, 2004, and 2008. Over time, these adjustments raised the standard maximum per-day penalty from $25,000 to $37,500.

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Did EPA Overstep in Applying Soil Vapor Intrusion Guidance to Commercial Buildings?

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Pillsbury Winthrop Shaw Pittman LLP
Reza Zarghamee, Sheila McCafferty Harvey, Peter H. Wyckoff
and Jeffrey A. Knight

October 21, 2013

In April 2013, U.S. EPA’s Office of Solid Waste and Emergency Response issued two guidance documents on soil vapor intrusion. One addresses general soil vapor intrusion issues1, while the other is specific to petroleum vapor intrusion at leaking underground storage tank sites 2. This alert focuses on the first one – the “2013 Guidance.” Although the 2013 Guidance was issued as “final,” U.S. EPA solicited public comments through June 24, 2013. The 2013 Guidance changes U.S. EPA’s basic approach to addressing soil vapor intrusion and raises important jurisdictional issues regarding the interplay between U.S. EPA and the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”). These features of the 2013 Guidance underscore the need for careful legal attention to cleanup sites involving soil vapor intrusion, which has become an important factor in both remedy selection and toxic torts litigation.

What Is Soil Vapor Intrusion and Why Is It Important?

The phrase “soil vapor intrusion” refers to the migration of volatile chemicals from a subsurface source into buildings. This migration occurs through cracks or perforations in floors and walls, when there is a difference in interior and exterior vapor pressure or concentration. Soil vapor (i.e., the gas between soil particles) can become contaminated when chemicals evaporate or migrate from contaminated soil or groundwater, non-aqueous phase liquid, buried wastes, and underground storage tanks or drums. The potential harm to humans posed by soil vapor intrusion depends on several factors, including the length, amount, and frequency of exposure, as well as the toxicity of the volatile chemicals and the individual’s sensitivity.

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