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Environmental Law Monitor

Join Us! Virginia Association of Environmental Professionals Virtual Meeting

Join Us! Virginia Association of Environmental Professionals Virtual Meeting

VAEP would like to invite Virginia environmental professionals, or those interested in entering the environmental field, to an information session where VAEP’s organizers will discuss their vision for the organization, membership expectations, and the hear from you about your interest in VAEP and how we can make this organization work for you ...
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EPA Proposes to Incorporate New Environment Due Diligence Standard

EPA Proposes to Incorporate New Environment Due Diligence Standard

On March 14, 2022, EPA published a Direct Final Rule and a Proposed Rule that would incorporate ASTM International’s (“ASTM”) updated standard for conducting Phase I Environmental Site Assessments (“Phase I ESAs”) into EPA’s “All Appropriate Inquires” regulations. As background, ASTM 1527 is designed to provide a consistent standard for satisfying EPA’s All Appropriate Inquiries (“AAI”) Rule when assessing current environmental conditions as part of ...
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Army Corps Changes Course on Jurisdictional Determinations

Army Corps Changes Course on Jurisdictional Determinations

On January 5, 2022, the U.S. Army Corps of Engineers (“USACE”) quietly released an announcement stating that it will not rely on approved jurisdictional determinations (“AJDs”) issued under the now-vacated Navigable Waters Protection Rule (“NWPR”).  This represents a significant change on how the USACE treats AJDs and could significantly impact pending permit applications which relied on AJDs issued under the previous rule. Background On Changes ...
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Turbid Water

Virginia DEQ Suspends Issuance of Landowner Liability “Comfort Letters”

On December 1, 2021, the Virginia Department of Environmental Quality (“VDEQ”)  announced via a notice on its Brownfields website that it stopped accepting applications for Bona Fide Prospective Purchase (“BFPP”) and other “Comfort Letters” for an indeterminate period of time. Such comfort letters had been an important tool available to prospective purchasers of industrial and other contaminated properties to help limit their liability for existing ...
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Back Hoe Hand Full of Mud

Update – Army Corps Resumes Permit Actions

On November 9, we reported that the U.S. Army Corps of Engineers (“Army Corps”) had paused action on certain permits that relied on the Trump Administration’s Clean Water Act (“CWA”) Sec. 401 Certification Rule (“2020 Rule”) after a California Federal Court vacated the 2020 Rule on October 21 of this year. The Court’s action had the effect of reinstating the previous CWA 401 Rule issued ...
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Gasoline Station

Revised Phase I ESA Standard Published

On Nov 1, 2021, ASTM International (“ASTM”) released the revised standard for conducting Phase I Environmental Site Assessments (“Phase I ESAs”).  The new standard, ASTM 1527-21, which revises the 1527-13, is intended to address inconsistencies that have developed in current environmental due diligence practice, and to improve the overall quality of Phase I ESAs. As background, the intent behind the ASTM 1527 was to provide ...
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Back Hoe Hand Full of Mud

Legal Alert – U.S. Army Corps Pauses Permit Decisions

Highlights: -  The Army Corps of Engineers has paused action on certain permits that relied on Trump Administration’s Clean Water Act (CWA) Sec. 401Certification Rule after a federal court in California “vacated” the 2020 Rules last month -  The permits that are held up include individual wetlands and dredging permits, as well as 16 Nationwide Permits, which could impact a number of pending projects -  ...
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EPA Releases PFAS Strategic Roadmap

EPA Releases PFAS Strategic Roadmap

Highlights - Businesses could face additional PFAS compliance requirements as early as 2022 - EPA planning to list PFAS as a CERCLA hazardous substance by 2023 - Expect PFAS to be addressed in NPDES permits and industrial ELGs - Expect establishment of PFAS drinking water limits and water quality criteria The U.S. Environmental Protection Agency (“EPA”) released its PFAS Strategic Roadmap on October 18, 2021.  ...
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Aerial View Of Buildings Smoke Fog

Environmental Justice Emerges as EPA and Virginia Priority

Recent guidance issued by the U.S. Environmental Protection Agency (“EPA”) evidences EPA’s intention to better incorporate Environmental Justice (“EJ”) considerations into program administration and enforcement.  Specifically, EPA issued two memoranda that signal a revitalized focus on EJ enforcement. On June 21, 2021, EPA issued a memorandum titled Strengthening Environmental Justice Through Criminal Enforcement, which sets out specific steps to advance EJ goals through criminal enforcement, ...
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Graduated Measuring Cylinder

EPA Proposes Retroactive PFAS Reporting

On June 28, 2021, the U.S. Environmental Protection Agency (“EPA”) published a proposed rule that would require a one-time report from companies that manufactured or imported per- and polyfluoroalkyl substances (PFAS) in any year since January 1, 2011. The proposed rule would require regulated entities to provide an expansive suite of information, including the specific chemical identity, categories of use, production volume, byproducts, environmental and ...
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Turbid Water

Muddy Waters: Virginia’s Proposed Numeric Turbidity Criteria and Potential Compliance Challenges

On April 12, 2021, the Virginia Department of Environmental Quality (DEQ) issued a Notice of Intended Regulatory Action (NOIRA) to establish first-time numeric turbidity criteria for Commonwealth surface waters in response to a directive by the State Water Control Board.  The establishment and potential enforcement of numeric turbidity criteria would impact a wide range of potential regulated industries, including construction, mining, infrastructure projects, and municipal ...
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Rusty Old Barrel in a Grass

Resolved, yet Unclear: Supreme Court Tightens CERCLA Contribution Claim Requirements

In a unanimous decision, the Supreme Court ruled that a party’s right to contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) after entering into a settlement arises only when the settlement agreement resolves CERCLA-specific liabilities.  This decision may call into question the effect of existing settlement agreements, the viability of ongoing contribution cases, and may revive the ability of  some parties ...
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Glass Railing

Spring Cleaning Part 2 – Legal Considerations for Business

Ah yes, hope is in the air as we turn the corner on winter and approach spring.  This year more than most, hope is riding on a wave of vaccinations that promises to break the grip of uncertainty that COVID has had on our daily lives.  Businesses in particular, many struggling to simply stay alive, are eagerly welcoming a potential wellspring of activity fueled by ...
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Air Pollution

What’s Old is New Again – DOJ Returns to Pre-Trump Administration Environmental Policies

On January 20, 2021, President Biden issued Executive Order (“EO”) 13,990, an expansive directive which resets the Federal Government’s vision for implementing nearly the entire gamut of environmental programs, including the Government’s approach to the incorporation of science in decision-making; public health; air, water, and chemical regulation; enforcement; environmental justice; climate change; and natural resource protection.  Of immediate consequence, section 2 of the EO requires ...
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Bass River

DEQ Releases Draft Climate Change Chesapeake Bay Preservation Area Management Regulations

On January 21, 2021, the State Water Control Board (“Board”) published draft amendments to the Chesapeake Bay Preservation Area Designation and Management Regulations that would require localities to incorporate coastal resilience and climate change adaptation into local land use ordinances.  This draft regulation implements amendments to the Chesapeake Bay Preservation Act (“CBPA”) passed during the 2020 General Assembly which requires local governments add consideration of ...
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Excavators Digging To Moving The Soil

Virginia DEQ Amends Construction General Permit to Include Disposal Disclosure Requirements

Contractors that obtain coverage under the Virginia General Permit for Discharges of Stormwater from Construction Activities (“Construction General Permit” or “Permit”) will soon need to disclose information regarding the disposal of excavated material from project sites. The Construction General Permit regulation, 9 VAC 25-880, governs stormwater discharges from regulated construction activities. Contractors seeking coverage under the Construction General Permit must submit a registration statement that ...
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Container ship

EPA Publishes Proposed Rule Establishing National Standards for Vessel Discharges

On October 26, 2020, EPA published its proposed rule under the Vessel Incidental Discharge Act (“VIDA”) which would establish national standards of performance for discharges incidental to the normal operation of vessels. Background EPA regulates vessel discharges pursuant to a Vessel General Permit (“VGP”) that was first issued in 2008 and reissued in 2013.  Vessel owners, however, must comply with different discharge standards under federal, ...
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Seachannel

Anchors Aweigh: Damage to Submarine Cable Caused by Barge Anchor Results in Significant Oil Pollution Act Liability

In a case of first impression, the Court of Appeals for the Second Circuit ruled that submarine cables containing dielectric fluids and other oils are “facilities” under the Oil Pollution Act.  Consequently, vessel operators that damage submarine cables could face significant liability for any resulting releases of oil. In Power Authority of the State of New York v. M/V Ellen S. Bouchard, et. al, a ...
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Four Semi Trucks

EPA RAMPS UP ENFORCEMENT AGAINST ENGINE EMISSIONS TAMPERING

Companies that manufacture, install, or otherwise defeat a vehicle’s emissions system risk EPA enforcement.  This is particularly true for activities designed to defeat emissions systems of diesel engines, which has drawn increased EPA scrutiny. A number of devices or services are available which are advertised to bypass or eliminate the effectiveness of vehicle emissions systems.  These devices or services are often targeted to diesel engines ...
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Virginia Prioritizes “Living Shorelines” for Shoreline Development and Management

Development projects that affect shorelines in Virginia will soon need to plan for the use of living shorelines as the preferred method for shoreline management in their development plans.  During the 2020 Legislative Session, the Virginia General Assembly amended Title 28.2 of the Virginia Code to strengthen Virginia Marine Resources Commission’s (VMRC) mandate to protect sensitive shorelines and wetlands.  Where the law previously encouraged the ...
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