Gibbons Law Alert

Gibbons Law Alert

Tagged: USEPA

EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

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Posted in Environmental and Green Issues

On April 2, 2014

In 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act.

EPA Issues Final Rule Authorizing the Use of Electronic Manifests for Hazardous Waste

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Posted in Environmental and Green Issues

On January 24, 2014

On January 13, 2014, EPA issued its final rule authorizing the use of electronic manifests for hazardous wastes. The rule implements provisions of the Hazardous Waste Electronic Manifest Establishment Act (“Act”) signed into law in 2012, which directed EPA to establish a national electronic manifest system for tracking hazardous waste. Although the final rule has been promulgated, the electronic system to handle electronic manifests will not be available until 2015 at the earliest.

The Deposition Not Taken: Eighth Circuit Holds Third Party Document to be Business Records of Another Entity Admissible Under FRE 803(6)

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Posted in Environmental and Green Issues

On December 18, 2013

In Residential Funding Co., LLC v. Terrace Mortgage Co., (Docket No. 12-2569, August 7, 2013) the Eighth Circuit upheld a grant of summary judgment, including damages evidenced by records created by a third party and supported by the third party’s affidavit. Ordinarily, an affidavit of a third party, if authenticated under FRE 902(11) (See Klock, New Jersey Practice, V2D, 555 (West 2009) is admissible if an appropriate foundation is laid. See Klock, New Jersey Practice, V2E, 342-43 (West 2012). Proper authentication requires notice of intent to use the affidavit. The affidavit in question apparently was not authenticated in that manner.

In Clean Water Act Case, Three Justices Invite Future Challenge to Rule of Deference to Agencies in Interpretation of Their Own Regulations

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Posted in Environmental and Green Issues

On May 8, 2013

A victory in the Supreme Court is generally welcome news for the U.S. Environmental Protection Agency (EPA). But, the Court’s decision last month in a Clean Water Act case may foreshadow a sweeping change in administrative law that would certainly not please EPA or other agencies: the end of a long-standing rule of judicial deference to agencies in the interpretation of their own regulations.

Vapor Intrusion Guidance Continues to Take Form With the Release of EPA’s Final Draft Guidance

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Posted in Environmental and Green Issues

On April 26, 2013

The United States Environmental Protection Agency (“EPA”) recently released its long-awaited final vapor intrusion draft guidance (“Final VI Guidance”). The nearly 200-page document establishes a complex framework for assessing vapor intrusion from analyzing key factors; making risk management decisions; and implementing, monitoring and terminating mitigation strategies and is intended to be used at any site that is being evaluated under CERCLA, RCRA, EPA’s brownfield grantees, or state agencies with delegated authority. The Final VI Guidance supercedes all prior EPA guidance documents addressing vapor intrusion assessment and mitigation including the 2002 Draft Vapor Intrusion Guidance, but takes into account the public comments submitted from 2002 through 2012 and the recommendations of the Office of Inspector General (OIG).

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

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Posted in Environmental and Green Issues

On January 24, 2013

The New Jersey Department of Environmental Protection (“NJDEP”) recently issued new vapor intrusion screening levels (“VISL”) and related guidelines, which will have an immediate impact on existing remediation sites. The screening levels were updated to reflect the changes in toxicity values and risk-based equations set forth in the United States Environmental Protection Agency’s (“USEPA”) most recent Regional Screening Level (“RSL”) Tables. NJDEP implemented the new VISL as of January 16, 2013. Parties conducting remediations and their Licensed Site Remediation Professionals will need to analyze how these new screening levels impact their sites.

A Super Step in Superfund Regulation? Time Will Tell: EPA Releases Guidance on Negotiation of RD/RA at Superfund Sites and a Revised Settlement Approach for Alternate Sites

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Posted in Environmental and Green Issues

On January 14, 2013

In the controversial area of Superfund regulation, the United States Environmental Protection Agency (“EPA”) appears to be making steps toward more successful and more efficient negotiation of remedial design (“RD”)/remedial action (“RA”) settlements in Superfund cases. EPA recently released its Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations (“the Negotiation Policy”) and Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (“Alternative Approach”).

USEPA Grants Technical Assistance to Coopers Ferry Partnership to Study SMART Initiative in Camden, N.J.

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Posted in Environmental and Green Issues

On July 26, 2012

On July 19, 2012, Coopers Ferry Partnership was one of 17 community partners selected by the U.S. Environmental Protection Agency (“EPA”) to receive technical assistance as part of its 2011 strategic agenda to renew support for green infrastructure and promote its effective implementation. The Coopers Ferry Partnership will receive $70,000 to advance projects aimed at reducing water pollution in Camden, New Jersey.

Texas Federal Court Splits Environmental Claims: CERCLA Claims Remain in Federal Court, State Claims are Remanded to State Court

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Posted in Environmental and Green Issues

On June 29, 2012

The United States District Court for the Southern District of Texas in May v. Apache Corporation, 2012 WL 156547 (S.D.Tex. May 1, 2012) issued an interesting decision on the relationship between federal and state environmental claims and where they can be heard. The case has some parallels to a case pending in the New Jersey State court captioned the New Jersey Department of Environmental Protection v. Occidental Chemical Corp., et als.

Industry Report Criticizes EPA Fracking Study for Poor Design, Insufficient Data

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Posted in Environmental and Green Issues

On May 23, 2012

As we reported this past December and January, last year the U.S. Environmental Protection Agency (EPA) released a draft report that linked contamination found in wells near Pavillion, Wyoming to the practice of hydraulic fracturing, or fracking. A report prepared for an oil and gas industry group, however, says the EPA study was deeply flawed.

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