Gibbons Law Alert

Gibbons Law Alert

Tagged: USEPA

EPA Agrees to Push Back Comment Deadline for Proposed Financial Assurance Regs

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Posted in Environmental and Green Issues

On March 7, 2017

The United States Environmental Protection Agency (“EPA”) recently extended the public comment period for a proposed rule which would impose financial assurances requirements for cleanups conducted by companies in the hardrock mining industry, as required by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In publishing the proposed rule on January 11, 2017, the EPA established a 60-day comment period for impacted parties to present their views on the rule to EPA. An overview of the financial assurance requirements imposed by CERCLA and the details of the proposed rule can be found in our prior posts on June 13, 2016 and January 4, 2017. On February 17, 2017, Congressmen Greg Walden (R-OR), Rob Bishop (R-UT), and Bill Shuster (R- PA) asked then-acting EPA Administrator Catherine McCabe to extend the comment period into the summer of 2017, citing the intricacies of the rule and complicated statistics on which EPA relied in drafting the rule. A week later, on February 24, 2017, recently confirmed EPA Administrator Scott Pruitt granted the request and extended the comment period by four months, claiming that the extension was in response to dozens of requests from stakeholders, in addition to the letter from the congressmen. Comments on the proposed rule are now due by July 11, 2017. The environmental attorneys at...

More on EPA’s New Recommendations on Sediment Cleanups

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Posted in Environmental and Green Issues

On February 15, 2017

Last month, we wrote about a new memorandum from the EPA’s Office of Land and Emergency Management that sets forth 11 recommendations for the agency’s regional offices on how to clean up contaminated sediments. Here we discuss some of those recommendations in greater detail. The EPA’s recommendations are shown below in bold text, followed by our comments and analysis. Recommendation 1: Consider early actions during the remedial investigation/feasibility study in site areas presenting high risks to help reduce risks quickly. Here, the EPA advises its regional offices not to wait until the sediments at a site are well characterized before taking steps to reduce serious risks. In many situations, the EPA can use its removal authority to reduce serious risks while other portions of the site are studied. Recommendation 2: Ensure adequate data collection during the remedial investigation/feasibility study to support the evaluation of alternatives. It’s never too early to plan ahead. From the very start of the process, the focus should be on collecting data that will support an eventual evaluation of remedial alternatives. Avoid “study for study’s sake.” Recommendation 3: Evaluate the risks associated with exposures to contaminated sediments, including submerged sediments. While the greatest risks at many sites likely involve ingestion of fish and shellfish, site managers should not ignore more direct pathways, such as...

Executive Order Spells Uncertainty for Pending EPA Rules

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Posted in Environmental and Green Issues

On February 8, 2017

On January 30, 2017, as promised during his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created. The order comes on the heels of a January 20, 2017 memorandum from White House Chief of Staff Reince Priebus directing agency heads to freeze new or pending regulations including those that had been finalized but not yet published in the Federal Register. The “one in, two out” rule and regulatory freeze spell uncertainty for regulations currently in the pipeline for adoption by the Environmental Protection Agency (“EPA”), including the proposed financial assurances rules for the hardrock mining industry we have previously covered here. Other impacted EPA rule proposals include a stormwater general permit designed to reduce polluted runoff from construction sites and a rule which would include vapor intrusion as a method of evaluating contamination levels at potential Superfund sites. At present, it is unclear how the administration’s actions will ultimately impact any pending EPA regulations (or those of other federal agencies). The environmental attorneys at Gibbons P.C. will be closely monitoring any further executive action impacting proposed EPA rules and report on any important developments.

EPA Issues Directive to Clarify Existing Guidance on Sediment Cleanups

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Posted in Environmental and Green Issues

On January 19, 2017

From Portland Harbor in Oregon to New Jersey’s Passaic River, contaminated sediment sites present unique challenges. While the EPA issued guidance documents for addressing contaminated sediment sites in 2002 and 2005, it has since learned many lessons in addressing dozens of such sites. A new memorandum from the EPA’s Office of Land and Emergency Management (OLEM), formerly the Office of Solid Waste and Emergency Response, sets forth 11 recommendations for improving the way the agency’s regional offices handle the complex process of cleaning up contaminated sediments.

EPA Proposes First Financial Assurances Rule

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Posted in Environmental and Green Issues

On January 4, 2017

On December 1, 2016, following decades of inaction and a court order establishing a deadline by which the proposed rule was to be released, the United States Environmental Protection Agency (“EPA”) announced that it would publish a proposed rule regulating financial assurances required for parties conducting remediation projects in the hardrock mining industry. Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) directed EPA to develop rules requiring “that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous wastes.” 42 U.S.C. 9608(b)(1). Although these rules were required to be promulgated by 1985, EPA never published any rules, which led to a deadline of December 1, 2016 being set by court order in response to a lawsuit complaining that EPA failed to comply with the statute. See In re Idaho Conservation League, 811 F.3d 502 (D.C. Cir. 2016). In the absence of such rules, EPA required financial assurance through negotiated settlements, orders, and guidance.

Feds Must Consider All Reasonable Alternatives in Endangered Species Analysis

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 25, 2016

Recently, the D.C. Circuit threw out the United States Fish & Wildlife Service’s (“FWS”) approval of a conservation plan to reduce the impacts of a proposed wind turbine farm on endangered Indiana bats. In Union Neighbors United Inc. v. Jewell, et al., Docket No. 15-5147, the Court of Appeals held that FWS failed to consider all reasonable alternatives to Buckeye Wind LLC’s (“Buckeye”) plan to limit bat injuries and deaths resulting from encounters with the proposed turbines as required by the National Environmental Policy Act (“NEPA”).

EPA Provides Look Into Pending Financial Assurance Regulations

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Posted in Environmental and Green Issues

On June 13, 2016

Recently, the United States Environmental Protection Agency (“EPA” or “the Agency”) shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.

No Need to Wait: Supreme Court Permits Judicial Review of Wetlands Jurisdictional Determinations

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Posted in Environmental and Green Issues

On June 7, 2016

As we reported, four years ago, in Sackett v. EPA, the U.S. Supreme Court held that a recipient of a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order before obtaining judicial review of its validity. In a recent opinion the Court extended the rationale of Sackett and again lowered the threshold of judicial reviewability, holding that a landowner can seek judicial review of a mere determination by the U.S. Army Corps of Engineers (Corps) that its property contains wetlands whose filling would require a permit under the Clean Water Act.

Supreme Court Limits EPA’s Authority to Regulate Carbon Emissions from Stationary Sources

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Posted in Environmental and Green Issues

On September 18, 2014

Since the Supreme Court’s 2007 decision in Massachusetts v. EPA, it has been clear that the U.S. Environmental Protection Agency (“EPA”) has the authority under the Clean Air Act (“CAA”) to regulate emissions of greenhouse gases (“GHGs”) from mobile sources because GHGs fall within the CAA’s definition of an “air pollutant.” When EPA sought to regulate GHG emissions from stationary sources (mainly power plants and factories), however, the Court sang a slightly different tune. In Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”), the Court rejected EPA’s attempt to regulate GHG emissions from stationary sources under two regulatory programs based solely on those emissions, while affirming the agency’s ability to regulate such emissions from so-called “anyway” sources that are already undergoing regulatory review because of emissions of other pollutants.

U.S. Supreme Court Gives Downwind States Breathing Room Under the Clean Air Act

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Posted in Environmental and Green Issues

On May 7, 2014

On April 29, 2014, in EPA, et al v. EME Homer City Generation, LP, the United States Supreme Court ruled in favor of the US Environmental Protection Agency (“EPA”) and its controversial “Transport Rule” which curbed nitrous oxide and sulfur dioxide emissions in 27 upwind states. The Supreme Court held it was appropriate to defer to EPA’s expertise in crafting a method of implementing the Clean Air Act’s (“CAA”) “Good Neighbor” provision to reduce pollution from upwind states onto their downwind neighbors.

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