SCOTUS Hears Oral Arguments in Major Clean Water Act Case

Michael Best & Friedrich LLP
Scott C. Beightol, John A. Sheehan, Leah Hurtgen Ziemba and Samuel M. Mitchell

November 8, 2019

The U.S. Supreme Court appeared divided following recent oral arguments on Wednesday, November 6, 2019 in a closely followed environmental case which will have major implications on the scope federal regulatory power under the Clean Water Act (CWA).

In County of Maui, Hawaii v. Hawaii Wildlife Fund, the justices are considering whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The outcome of Maui will have a significant impact on a wide-array of industries and private individuals by either subjecting millions of pollutant sources to the CWA’s permitting requirements for the first time or enshrining what environmentalists consider a loophole in the CWA. Although several justices seem to reject the county’s argument that the federal government should only regulate pollution direct from a point source, the justices appear divided as to the limits of such regulation.

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NJDEP Changes Policy for Applicability of the ISRA De Minimis Quantity Exemption

Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

November 6, 2019

Reprinted with permission.  © 2019 Riker Danzig Scherer Hyland & Perretti LLP

Certain business transactions involving property in New Jersey now risk facing expanded environmental obligations if the parties do not follow an administrative policy that has been quietly revised by the New Jersey Department of Environmental Protection (“NJDEP”). The environmental obligations at issue arise under the New Jersey Industrial Site Recovery Act (“ISRA”), which requires owners and/or operators of “industrial establishments” in New Jersey that cease operations or undergo a transfer of ownership or operational control to conduct an environmental review of and, if necessary, remediation of the industrial establishment prior to closing the transaction. However, ISRA allows those responsible for “industrial establishments” to avoid complying with the substantive requirements of ISRA as long as the establishment qualifies for a De Minimis Quantity Exemption (“DQE”). A DQE is available if an industrial establishment only has small (i.e., de minimis) amounts of hazardous materials present on site, and must be approved by the NJDEP based on an application submitted in connection with the transaction.

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The Wonderful Land Of OZ: An Overview Of Opportunity Zones

Weintraub Tobin Chediak Coleman Grodin Law Corporation
Aman Badyal

October 4, 2019

Opportunity Zones (or OZs) may be the most talked-about provision of the Tax Cuts and Jobs Act of 2017. There are many twists and turns on the yellow brick road to completing an OZ project. This article sets forth the underlying rationale of the OZ program, its principal tax benefits, an overview of the basic requirements for making an eligible investment, and certain common problems encountered by taxpayers seeking to take advantage of OZs. In particular, we emphasize the continued availability of the program even if you aren’t prepared to set off for the Emerald City right away.

Purpose of the Program

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EPA Seeks Public Input on Adding PFAS to the Toxic Release Inventory

Troutman Sanders LLP
Angela Levin, Randy E. Brogdon and Viktoriia De Las Casas

September 30, 2019

EPA’s first major action under its February 2019 comprehensive Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (previously discussed in detail here) is out. On September 25, EPA sent a request for public input on whether EPA should add “certain PFAS chemicals” to the Toxics Release Inventory (TRI) to the Office of Management and Budget (OMB). EPA issues advance notices of proposed rulemaking to get a sense of public reaction before it initiates an important regulatory change, typically before it has conducted significant research or expended agency resources.

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Contaminants Of Emerging Concern And Environmental Due Diligence Issues

McLane Middleton, PA
Adam M. Dumville & Michael J. Quinn

October 8, 2019

This article was originally published in the New Hampshire Bar News, September 2019

Practitioners performing environmental due diligence have grown accustomed to the now routine use of Phase 1 Environmental Site Assessments (ESA).  However, the adoption of new regulatory standards raises the possibility that standard ASTM-compliant ESAs may be insufficient to identify potential environmental risks. Specifically, so called contaminants of emerging concern (CECs), which include chemicals found in firefighting foam, water proof fabrics, pharmaceuticals, personal care goods and many more products have only very recently become regulated. However, CECs are not currently classified as “hazardous” under federal law, and therefore, are not regulated under the variety of environmental statutes and accordingly, are not assessed by standard Phase 1 ESAs.

The PFAS Issue

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Report Recommends Changes To US EPA’s General Permit For Industrial Stormwater Discharges Ahead Of Reissuance

Squire Patton Boggs LLP
Erik D. Lange

October 11, 2019

Stormwater permitting requirements for many industrial facilities are set forth in US EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) or state permits based on the MSGP. US EPA last issued the permit in 2015, which expires on June 4, 2020. While the current Administration does not appear to be predisposed to the implementation of more onerous environmental permitting requirements, an EPA-funded report has recommended transformative changes to the MSGP. The Agency’s decision whether to incorporate those recommendations into the reissuance of the MSGP will determine whether industrial facilities will need to implement additional stormwater monitoring and control measures in the coming years.

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Environmental Due Diligence: An Essential Step in M&A Transactions

Troutman Sanders LLP
Andrew J. Perel and M. Buck Dixon

September 1, 2019

This publication was originally published in the Troutman Sanders Law Blog

The risk of shortcutting environmental due diligence cannot be overstated. There is a tendency during mergers and acquisitions (M&A) transactions to view such due diligence as simply another box to check before closing. It is not. What might appear to be a time-consuming, costly and burdensome process, will not be fully appreciated until businesses are faced with the consequences of not doing so. 

This overview highlights several important benefits of proper environmental due diligence, discusses risk allocation and mitigation strategies, and identifies emerging issues.

Protect Your Investment

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EPA Issues New CERCLA Guidance on Liability Protections for Current/Potential Impacted Site Owners

Cozen O’Connor
Amorie Hummel and Marcia Mulkey

September 10, 2019

If you’re back to work navigating the complexities of cleaning up a brownfields site, you’re in luck. The United States Environmental Protection Agency (EPA) issued a 31-page update to “Enforcement Discretion Guidance” for enforcement personnel as it relates to liability protections under the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) this summer. While styled as a memorandum to agency enforcers, this guidance and its predecessor documents are also offered by EPA as “general information to landowners, developers, lenders, investors, or other third-party stakeholders who may wish to become involved with impacted properties.” The guidance is available here.

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Could Your Property Be Contaminated? And Do You Want to Know?

Davis Wright Tremaine LLP
Lynn T. Manolopoulos

September 1, 2019

Avoiding Information Gathering About Your Property’s Potential Environmental Contamination May Not Do Your Business Any Favors

Do you own a piece of property that may be contaminated? We often hear clients say they do not want to know the answer to that question because they will be forced to do something about it. We disagree with that approach because you can’t make a good business decision about your property unless you have all the facts.

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The 2015 WOTUS Rule Is Repealed

Breazeale Sachse & Wilson LLP
John B. King

September 13, 2019

The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule). The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands. The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.

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