Environmental
They’re Back! DEQ to Resume Issuance of Landowner Liability Comfort Letters
Virginia’s Department of Environmental Quality (“VDEQ”) announced via its email newsletter that it will resume issuance of Bona Fide Prospective Purchase (“BFPP”) and other “Comfort Letters” beginning September 1, 2022. This resumes a popular program that offers welcomed legal clarity to businesses looking to purchase environmentally distressed properties. As we reported on December 13, 2021, VDEQ suspended issuance of Comfort Letters due to the surge ...
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EPA Sets Near “Zero” PFAS Drinking Water Health Advisory
On June 15, 2022, EPA issued four drinking water health advisories for per- and polyfluoroalkyl substances (PFAS) that set levels so low that it amounts to a finding that no level of PFAS in drinking water is acceptable. As background, EPA sets drinking water health advisories for certain chemicals, many of which are unregulated by conventional environmental laws, to inform drinking water providers and the ...
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U.S. Army Corps Reissues Virginia Statewide Permits, but Excludes Mining Activities
The Norfolk District of the U.S. Army Corp of Engineers (“Corps”), in coordination with the Virginia Department of Environmental Quality (“VDEQ”), is proposing two Virginia State Programmatic General Permits (“SPGP”) authorizing discharge of dredge or fill material in nontidal waters of the United States, including wetlands, from certain commercial, industrial, residential, and linear transportation activities to replace the existing SPGP. The most significant change from ...
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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
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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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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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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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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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
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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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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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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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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Resolved, yet Unclear: Supreme Court Tightens CERCLA Contribution Claim Requirements
Joseph Romero Appellate Practice, Environmental, Environmental Law Monitor, Government Contracts, Litigation
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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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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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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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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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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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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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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