EPA Declines To Issue CERCLA Financial Responsibility Rules For Hardrock Mining Industry But Leaves Open What It Might Do For Other Industries

Pillsbury Winthrop Shaw Pittman LLP
Anthony B. Cavender

December 7, 2017

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as Superfund, was enacted in December 1980, and Section 108(b) provides that the Environmental Protection Agency (EPA) shall promulgate, no later than December 11, 1985, financial responsibility requirements for classes of facilities—designated by EPA—consistent with “the degree and duration of risk associated with their production, transportation, treatment, storage or disposal of hazardous substances.” Despite this directive, EPA has not issued any financial responsibility rules under Section 108(b). This record of inaction prompted a lawsuit demanding compliance with the law.

Continue Reading

New NJDEP Webpage Contains Requirements for LSRPs Related to Contaminants of Emerging Concern

Manko Gold Katcher & Fox
John F. Gullace

November 9, 2017

On November 3, the New Jersey Department of Environmental Protection (NJDEP) announced that the Site Remediation and Waste Management Program had launched a new webpage dedicated to “Contaminants of Emerging Concern.” www.nj.gov/dep/srp/emerging-contaminants/. The announcement notes that the new webpage “currently focuses on Per- and Polyfluoroalkyl Substances (PFAS)” such as perfluorooctanoic acid (PFOA).

Neither the announcement nor the new webpage clearly defines what constitutes a contaminant of emerging concern, but the webpage implies that these contaminants are ubiquitous and include compounds for which there are emerging standards, like PFOA, as well as compounds that are still being studied by NJDEP, the United States Environmental Protection Agency (EPA) and other entities.

Continue Reading

CT Creates New Brownfields Program, Adopts Brownfields Tax Credit

Holland & Knight
Stephen J. Humes

November 6, 2017

Buried in an 881-page budget bill passed Thursday by the Connecticut General Assembly was a new program to support remediation and reuse of brownfields – properties long contaminated and underutilized – as well as new job creation while rewarding investors with a new state income tax credit for remediation expenditures.

The new program, called the 7/7 Brownfields Program, creates new incentives the Connecticut Department of Economic and Community Development (DECD) can use to reward new investors for cleaning up contaminated sites and reusing them while creating local jobs in the process. Qualifying investors can apply a credit for the expenditures against their Connecticut state income tax liability for seven  years and use the credit to offset sales and use taxes.

Continue Reading

New Concerns for Companies That Import or Manufacture “Toxic” Chemicals

Clark Hill PLC
William J. Walsh, Karen C. Bennett, Jane C. Luxton and Kenneth von Schaumburg

November 10, 2017

Inevitably, a change in Administrations leads to changes in policies and priorities of regulatory agencies. Most media coverage has focused on opposition to the Trump Administration’s efforts to revise existing or proposed regulations and an anticipated decrease in federal enforcement actions.

However, less attention is being paid to an uptick in citizen enforcement suits filed directly against manufacturers and importers of “toxic” chemicals (i.e., existing chemicals regulated by the Toxic Substance Control Act (“TSCA”)) that are subject to reporting obligations. For example,

Continue Reading

Federal Court Denies Recovery for Landfill Closure Costs Under CERCLA and New Jersey Spill Act

Greenbaum, Rowe, Smith & Davis LLP
Daniel Flynn

November 9, 2017

A recent decision by the United States District Court held that landfill closure costs incurred by a private party were ineligible for recovery under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the New Jersey Spill Compensation and Control Act (the Spill Act).

The litigation in Strategic Environmental Partners, LLC v. State Department of Environmental Protection involved a dormant municipal landfill purchased by the plaintiff as part of a plan to construct and operate a solar farm on the property.  Shortly after the purchase, the plaintiff negotiated an Administrative Consent Order (ACO) with the New Jersey Department of Environmental Protection (NJDEP) in which it agreed to “close” and “cap” the landfill pursuant to the New Jersey Solid Waste Management Act, which governs closure of municipal landfills.

Continue Reading

Trump Track: EPA Moves on its Plan to Repeal [and Eventually Replace?] the Clean Power Plan

Davis Wright Tremaine, LLP
Kerry Shea

Reprinted with permission. © 2017 Davis Wright Tremaine, LLP
Article was originally posted to DWT’s Energy & Environmental Law Blog

October 11, 2017

On October 10, 2017, EPA announced it is taking steps to repeal the Clean Power Plan (CPP), regulations put in place in 2015 which requires existing power plants to roll back their CO2 emissions by 2030. EPA is taking the unusual position that the agency exceeded its powers under the Clean Air Act when it created the CPP. The new EPA intends to look into its own powers and reconsider whether, when and how to issue a rule regulating greenhouse gases from existing facilities.

The process launched today begins a procedure which can, and likely will, take years to complete. The end result is unclear and likely will be determined by a court.

Continue Reading

Pruitt Directive Puts a Stop to EPA’s Sue and Settle Practice

Husch Blackwell LLP
Megan P. Caldwell

October 17, 2017

This week, United States Environmental Protection Agency (“EPA”) Administrator Scott Pruitt issued a directive to end the Obama-era “sue and settle” practice of the agency. Under the existing practice, environmental and special interest groups sue EPA to try to force the agency to take certain actions, and the agency typically settles those lawsuits by entering into private settlement agreements and public consent decrees. Those settlements often lead to the promulgation of environmental regulations, what Pruitt calls “the results of collusion with outside groups” that, according to him, takes place behind closed doors and excludes intervenors, interested stakeholders, and affected states from the process. Pruitt wants to put a stop to the “sue and settle” tactic, and his two October 16, 2017 memoranda, entitled “Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements” and “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” work to do just that.

Continue Reading

USDOT Proposes Rules to Eliminate Duplication of Environmental Reviews

Harris Beach PLLC
Lauren Baron, Gene Kelly, John A. Mancuso, Robert G. Murray, Frank C. Pavia and Joseph D. Picciotti

October 3, 2017

On September 28 and 29, 2017, the U.S. Department of Transportation (“DOT”) published  Notices of Proposed Rulemaking to commence a public comment period on proposed regulations governing DOT’s Program for Eliminating Duplication of Environmental Reviews, established by Section 1309 of the Fixing America’s Surface Transportation Act (“FAST Act”).  Section 1309 directed the U.S. Secretary of Transportation to establish a pilot program authorizing up to five states to conduct environmental reviews and provide approvals for projects utilizing state environmental laws and regulations, rather than subjecting such projects to the review process of the National Environmental Policy Act (“NEPA”).

Continue Reading

The Coal Ash Rule: Looming Battles Over Enforcement and Rollback

Steptoe & Johnson LLP
Anthony G. Hopp, Libretta Stennes and Christopher W. Smith

October 4, 2017

This October marks the deadline for the implementation of groundwater monitoring and corrective action under the Disposal of Coal Combustion Residuals from Electric Utilities Final Rule – the Coal Ash Rule – or does it?

Recent legal activity has not only called into question when the final rule will be implemented, but also has opened the possibility of further Environmental Protection Agency (EPA) rulemaking. Interested parties on both sides are closely watching the administration, the regulated community, and various non-governmental organizations (NGOs) as they support, challenge, and work to implement the Coal Ash Rule (the Rule).

Continue Reading