EPA Budget Cuts: Welcome Change or Cause for Concern?

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

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

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

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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Developing Distressed Property: Desirability and Viability

Zarwin, Baum, DeVito, Kaplan, Schaer, Toddy P.C.
Paul M. Schmidt

July 25, 2017

Location, Location, Location. This remains one of the critical aspects of real estate development. The other is that “it’s not about the money, it’s about the money.” So, while the redevelopment of Brownfields makes people feel good, at the end of the day, a Brownfield site has to be in the right location for a redeveloper or buyer, and has to make economic sense. Currently, a number of trends in real estate desirability are making Brownfield sites the perfect location for redevelopment and reuse. At the same time, as programs concerning cleanup, funding and risk management have become more favorable, the return on investment, or economic viability, of properties has also increased. This article will examine some of the key aspects of desirability and viability that are working together to make Brownfield redevelopment increasingly attractive in today’s real estate market.

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Coming Soon To A Massachusetts Facility Near You: More Citizen Enforcement?

Foley Hoag LLP
Seth D. Jaffe

August 9, 2017

Earlier this week, the Massachusetts Executive Office of Environmental Affairs went live with two new web sites intended to increase the public availability of information concerning regulated entities in Massachusetts.  The first, ePLACE, will provide information about on-line permit applications.  However, since MassDEP began accepting on-line applications on May 5, 2017, ePLACE is going to be of much more interest in the future than it is today.  As of now, there is not much there.

The more interesting site is the Data Portal, which lists permits, inspections, and enforcement actions with respect to any facility in Massachusetts.  The site does not provide many specifics, but it does list every existing permit and enforcement action against each facility in Massachusetts.

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NJDEP Offers Guidance On Remedial Action Report Submittal Deadlines

Riker Danzig Scherer Hyland & Perretti LLP
Laurie J. Sands

August 1, 2017

Reprinted with permission.  © 2017 Riker Danzig Scherer Hyland & Perretti LLP.

Recently, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance regarding the regulatory and mandatory timeframes for the submission of a remedial action report pursuant to the Technical Requirements for Site Remediation and the Administrative Requirements of the Remediation of Contaminated Sites. The guidance is meant to assist persons responsible for conducting the remediation (“PRCR”) in determining when remedial action reports are due, when to request an extension of the regulatory and mandatory deadlines for submission of such reports and in what situations the NJDEP will consider such an extension.

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EPA Administrator Takes Aim at Aging Superfund Sites

Phillips Lytle LLP
Myriah V. Jaworski

July 27, 2017

Despite condoning a 34 percent cut to his agency’s funding for fiscal year 2018, U.S. EPA Administrator Scott Pruitt this week announced a seemingly ambitious plan to expedite the federal Superfund process to address the roughly 1,300 sites listed on the National Priorities List. Characterizing these sites as “languishing,” Pruitt promised that the “days of talking are over,” and that EPA would take immediate action to accelerate cleanup efforts nationwide.

Specifically, on July 25, Pruitt and the U.S. EPA Superfund Task Force released their “Recommendations to Streamline and Improve the Superfund Program.” The Report detailed 42 recommendations organized into five goals, which Pruitt believes will have the effect of expediting the remedial process and promoting reuse of contaminated sites. The high-level goals identified are: (1) expediting cleanup and remediation; (2) re-invigorating responsible party cleanup and reuse; (3) encouraging private investment; (4) promoting redevelopment and community revitalization; and (5) encouraging partners and stakeholders.

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Public Comment Opens on WOTUS Rulemaking


Vinson & Elkins LLP
Andrew R. Stewart and Taylor Holcomb

July 31, 2017

On July 27, the Environmental Protection Agency and the Corps of Engineers jointly proposed to rescind the “waters of the United States” definition in the Code of Federal Regulations and to apply the definition in place both before to the 2015 rulemaking adding the definition and after the Sixth Circuit’s late 2015 stay of the rule. This rulemaking is drawing substantial interest because the definition outlines much of these agencies’ jurisdiction. Public comments are due on August 28, 2017.

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Leaking Underground Storage Tank Trust Fund: Petroleum Marketers Association of America (and Other Groups) June 16th Letter to House Committee on Appropriations Addressing Funding

Mitchell Williams Selig Gates & Woodyard PLLC
Walter Wright

July 5, 2017

The Petroleum Marketers Association of America along with the National Association of Convenience Stores, National Association of Truck Stop Operators, and Society of Independent Gasoline Marketers of America (collectively “PMAA”) sent a June 16th letter to the Chairman and Ranking Member of the United States House of Representatives Committee on Appropriations addressing the federal Leaking Underground Storage Tank Trust Fund (“LUST Fund”).

The focus of the joint letter was opposition to the President’s FY 2018 budget request of $47 million for the LUST Fund arguing the amount is inadequate.

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