USEPA and Army Corps Propose New WOTUS Rule

Vorys Sater Seymour and Pease LLP
Ryan D.Elliott

December 11, 2018

This article was originally posted in the Vorys Energy & Environmental Law Blog

On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow WOTUS definition. Specifically, the new proposed rules defines 6 categories of waters subject to USEPA/Army Corps jurisdiction:

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“The State Doesn’t Care If It Works”: Why Voluntary Cleanup Programs Succeed (or Not)

Hunton Andrews Kurth LLP
Dan J. Jordanger

November 28, 2018

Nobody wants to live near a designated “Superfund” site. Aside from potential exposure to hazardous chemicals, the stigma associated with proximity to a Superfund site leads to loss of property value. In addition, the Superfund process is notorious for its record of protracted and expensive cleanups. In view of these well-founded concerns, a number of states have adopted voluntary cleanup programs (VCPs) as alternatives to the federal Superfund program. A well-structured and well-run VCP can keep a contaminated property out of the Superfund program while at the same time providing a mechanism for investigation and cleanup. VCPs often work particularly well to facilitate the cleanup and re-use of “Brownfields,” former industrial or commercial sites where future use is affected by real or perceived environmental contamination.

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NJ Adopts New Site Remediation Rules, Affecting Real Property Owners and Users

Pepper Hamilton LLP
Gregory S. Narsh and Thomas M. Letizia

December 3, 2018

New Jersey has one of the nation’s strictest site remediation regimes, and new amendments to the law may create further compliance challenges for property owners and users. The Industrial Site Recovery Act (ISRA), which is a “transaction trigger” law, requires remediation of certain sites when there is a change in the ownership or operations of the business or property, such as signing an agreement to sell the property. In August, the New Jersey Department of Environmental Protection (NJDEP) adopted several new amendments that property owners and users should be aware of. In this article, we discuss two of the more significant changes.


NJDEP implemented ISRA in 1993 to create a strong mechanism for cleaning up the numerous contaminated sites across the state. The law requires investigation, quantification and remediation of contaminated property that may not have been required had the triggering transaction not occurred.

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U.S. Warns Iranian Oil Tankers May Be Courting ‘Environmental Disaster’

Radio Free Europe
Radio Liberty

November 8, 2018

The United States is warning other countries not to allow Iranian oil tankers into their ports, saying the tankers not only could incur penalties under U.S. sanctions but may be courting “environmental disaster.”

The State Department warned the global shipping and insurance industries on November 7 that as part of Washington’s “maximum pressure campaign” to get Iran to change its behavior, insuring Iranian tankers will now incur penalties under the sanctions reinstated this week.

Brian Hook, the special U.S. representative for Iran, said that as major insurers withdraw coverage from Iranian vessels, Iran will likely turn to domestic insurance companies that will not be able to cover losses for maritime accidents that could run into the billions of dollars.

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New Law Requires Widespread Testing for Unregulated Contaminants

Jenner & Block LLP
Steven M. Siros

October 26, 2018

On October 23, 2018, President Trump signed into law America’s Water Infrastructure Act of 2018 which, in addition to authorizing federal funding for water infrastructure projects, also requires drinking water systems serving more than 3,300 people to test for unregulated contaminants pursuant to U.S. EPA’s Unregulated Contaminants Monitoring Rule (UCMR). Prior to this new law, only drinking water systems that served more than 10,000 people were required to monitor for unregulated contaminants. Contaminants covered by the UCMR include PFOA, PFOS, 1,2,3-TCP, hexavalent chromium and 1,4-dioxane. This new testing requirement, which goes into effect in 2021, is expected to add more than 5,000 drinking water systems to the list of systems that are required to test for these unregulated contaminants.

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Impact of the 2018 Midterm Elections

Dykema Gossett PLLC
James Brandell, Andrew J. Buczek and Mary Beth L. McGowan

November 8, 2018

With the new Democratic House majority and Republicans maintaining control of the Senate, Washington, D.C., now enters a period of divided government in the run up to the 2020 presidential election. Democrats and Republicans, including President Trump, will have to compromise on a budget and impending debt limit and sequestration, as well as spending levels for the coming fiscal years in order to avoid a government shutdown. In addition, there appears to be a willingness to work together on some big ticket items, like infrastructure investment and drug pricing. The two parties may even be able to advance smaller policy initiatives impacting areas such as energy, financial services, cybersecurity, and trade. Expectations, however, are for a politically-charged and highly partisan environment where both parties will be turning out messaging in preparation for 2020, not only in the form of legislation, but, also through committee hearings and investigations in the House. The Democratic House’s new authority to direct oversight and investigation of the Trump administration could impact the pace of legislative activity if House committees prioritize oversight in favor of turning out legislation. Increased scrutiny of the executive branch may also slow the regulatory process as departments and agencies are bogged down responding to subpoenas and document requests. While the House can be expected to tackle Democratic priorities on issues such as immigration and health care, the Senate will likely continue its focus on confirming judges and executive branch nominees with increasing the ranks of political appointees in the Trump administration becoming increasingly important in light of anticipated House investigations. The enhanced Republican majority in the Senate will make it much easier for President Trump to get his nominees confirmed. With more than 400 nominees currently pending and several senior Administration officials likely to step down in the coming months, this could prove to be one of the most significant impacts of the midterms. Here is a look at the impact of yesterday’s election on a number of major issues confronting Congress.

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The Rule of Law, Agency Enforcement and the Environment

Bracewell LLP
Brittany M. Pemberton and Daniel J. Pope

November 6, 2018

Over the past two years, officials within President Trump’s administration have invoked the rule of law regarding the administration’s enforcement goals on issues ranging from marijuana production to immigration. Late last month, we saw a glimpse into how the Department of Justice’s Environment and Natural Resources Division (ENRD), at the time led by Acting Assistant Attorney General (AAG) Jeffrey H. Wood,[1] views application of the rule of law to environmental and natural resource litigation and enforcement. The Acting AAG presented the keynote speech at the American Bar Association’s Section of Environment, Energy, and Resources (SEER) Conference. He reflected on his time as AAG with ENRD. (His full remarks are available here.) Acting AAG Wood’s remarks built upon the March 2018 guidance entitled “Enforcement Principles and Priorities.” Bracewell’s Environmental Strategies Group developed a blog series on the guidance, accessible here.

In his remarks at the SEER Conference, Wood emphasized that the impartial rule of law is as much a method of decision-making as it is an outcome. For ENRD, this includes everything from increasing prosecution of wildlife trafficking crimes to defending controversial — but still lawful — projects such as federally permitted pipelines. ENRD continues to defend such projects around the country, consistent with the March 2018 guidance, prioritizing enforcement cases that protect American infrastructure. And, although ENRD and other federal agencies have continued to bring tough enforcement actions against regulated entities for a variety of violations, Wood explained that they should strive for predictability and a fair and neutral reading of environmental laws and regulations. Instead of using enforcement to dictate a preferred policy, Acting AAG Wood asserted that ENRD’s new approach will be to drive straight down the middle: Civil enforcement actions should never be used to convert guidance documents into binding rules, which would violate due process by evading notice and comment requirements. Many regulated entities welcomed this perspective based on their strong preference for a more stable and discernible background of legislation, regulation, and enforcement against which they can plan, invest, permit and comply.

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Risk Management Roadmap: Navigating Environmental Due Diligence in Multi-Jurisdictional Transactions

Hunton Andrews Kurth LLP
P. Scott Burton

October 1, 2018

This article was originally posted in the Nickel Report, The Hunton Energy & Environmental Law Blog

Depending upon the assets being acquired or project being developed, a well-designed due diligence plan can be a critical component in managing transaction risk both before and after closing or commercial operation. Adeptly managing the due diligence process requires careful thought to appropriate timing and scope at both the front and back ends.

Among the most critical items in ensuring a successful outcome are consulting decision-makers who are driving the transaction and engaging professionals to provide appropriate support well in advance. Too often, key risks are overlooked or not adequately allocated or managed as a result of a rushed or improperly focused due diligence effort. Particularly for assets or projects with an inherently higher environmental, health and safety, or social (EHSS) impact potential, attempting to manage risk through the purchase and sale or development agreements alone also may not suffice. For example, avoiding a risk by carving out particular assets, employing third-party risk management strategies such as insurance policies, and post-acquisition integration or stakeholder engagement plans can be among the more effective means of managing EHSS risk—but these each require careful strategic planning by a team of professionals with the skills and experience to navigate a transaction’s complexities, particularly in a cross-border context.

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Environmental liability in the USA

Beveridge & Diamond PC
James M. Auslander, Ryan J. Carra, Virginie R. Casey, Andrew C. Silton, Shengzhi Wang and Nicole B. Weinstein

October 1, 2018


 Types of liability

 What types of liability can arise for environmental damage (eg, administrative, civil, criminal)?

There is no US generalised regime for environmental damages. Statutes, regulations and common law can impose various types of liability, including administrative, civil and criminal. Courts in turn establish precedent for liability in cases arising under various environmental laws. Alleged violators may face government administrative actions, civil suits or citizen suits. Only the government can prosecute criminal liability in court.

The government generally follows proportional enforcement. Minor offences may trigger administrative or civil sanctions; more serious and intentional violations trigger more severe sanctions or even criminal charges. The government’s burden of proof is highest in criminal cases.

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Third Circuit Holds Current Owners May Be Liable for Past Remediation Costs Under CERCLA

Manko Gold Katcher & Fox
Shelby Hancock

October 10, 2018

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.

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