Environmental Law Monitor

EPA Proposes Retroactive PFAS Reporting

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

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

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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Spring Cleaning Part 2 – Legal Considerations for Business

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

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

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

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

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

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

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

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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EPA Finalizes Amendments to Clean Water Act 401 Certification Process

EPA Finalizes Amendments to Clean Water Act 401 Certification Process

On June 1, 2020, EPA finalized amendments to the Clean Water Act section 401 certification process.  The amendments update the substantive and procedural requirements for state water quality certifications.  The rule is almost certainly going to be challenged in court by states and special interest groups.  If it survives, however, the new rule could provide companies with greater planning certainty by reducing project permitting delays, ...
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EPA Formally Adds PFAS to the TRI Pursuant to Congressional Mandate

EPA Formally Adds PFAS to the TRI Pursuant to Congressional Mandate

On May 18, 2020, EPA published its final rule adding 172 per-and polyfluoroalkyl substances (“PFAS”) to the list of chemicals requiring reporting on the Toxics Release Inventory (TRI), which heightens the importance of understanding whether your business processes, manufactures, or uses PFAS.   As explained at EPA’s website, PFAS are a group of man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFOA and ...
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court room

Court Decision Vacating Nationwide Permit 12 Creates Concern for All Nationwide Permits

[Legal Alert] UPDATE: On May 11, 2020, the District Court in Montana amended its initial Order, which completely vacated Nationwide Permit 12, to make the Court’s Order applicable only to the construction of new oil and gas pipelines.  All other activities may once again continue using NWP 12, at least for the time being.  Entities intending to begin a new project which will rely on ...
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Environmental and Regulatory Compliance During the COVID-19 Pandemic: Best Practices

Environmental and Regulatory Compliance During the COVID-19 Pandemic: Best Practices

The regulatory landscape has become a challenging place to operate as the nation struggles to contain the spread of COVID-19.  The frequency and diversity of policy changes being issued by various levels of government, combined with the proliferation of information and misinformation, means regulated entities may find it difficult to track and accurately understand current environmental and safety requirements.  While we have posted several articles ...
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UPDATE: Virginia DEQ Issues Temporary Environmental Enforcement Policy During COVID-19

UPDATE: Virginia DEQ Issues Temporary Environmental Enforcement Policy During COVID-19

On March 30, we posted an article regarding the issuance of temporary environmental enforcement policies by the Environmental Protection Agency (EPA) and some states.  In that article, we discussed the Virginia Department of Environmental Quality’s (DEQ) announcement that they were suspending field activities.  We noted that DEQ’s announcement did not state it was enacting a similar enforcement approach as EPA.  As such, we explained that ...
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EPA and States Issue Temporary Environmental Enforcement Policies During COVID-19

EPA and States Issue Temporary Environmental Enforcement Policies During COVID-19

The increased limitations on day-to-day life resulting from efforts to slow the spread of COVID-19 have made previously routine regulatory compliance efforts more difficult.  In some cases, regulated entities may find that they are unable to comply with certain requirements imposed by regulations, a settlement agreement, or a consent decree.  For example, a hazardous waste generator may find it difficult to arrange for the transportation ...
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Environmental Enforcement Agreements, Force Majeure Provisions, & COVID-19: Now is the Time to Review Your Consent Order and Assess Your Options

Much has already been written regarding the potential of COVID-19 to impact construction or development projects.   For example, businesses may experience personnel or material shortages, or stoppages that result from Government-directed actions.  These delays jeopardize project timelines and place businesses in vulnerable positions regarding liquidated damages or other contract penalties.   These businesses are reviewing their contracts to see whether they may seek relief pursuant to ...
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DOJ Ends Use of SEPs In Civil Enforcement Actions

DOJ Ends Use of SEPs In Civil Enforcement Actions

In an immediate change to Department of Justice (DOJ) policy, the Assistant Attorney General for the Environment and Natural Resources Division, Jeffrey Bossert Clark, issued a memorandum on March 12, 2020 that ends the use of Supplemental Environmental Projects (SEPs) in federal environmental enforcement actions.     SEPs are environmentally beneficial projects not required by law, but that a defendant agrees to undertake as part of ...
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