Energy & Environmental Law Blog

Energy & Environmental Law Blog

Analyzing the critical energy and environmental issues of the day

Tag Archives: EPA

Trump Track: EPA Sue and Settle Fix?

Posted in EPA, Trump Track
On October 16, 2017, EPA Administrator Pruitt issued a memo to his agency directing that managers take certain steps to curtail the practice known as “sue and settle.” This practice most often is used for relatively quick resolution of citizen suits by environmental groups against the EPA involving the agency’s failure to comply with statutory deadlines for… Continue Reading

Trump Track: Portland Harbor Reset Redux

Posted in EPA, Trump Track
Last Thursday, I posted about EPA apparently looking at resetting the approach to the Portland Harbor Superfund site.  I believe that the cost associated with the cleanup plan contained in Region 10’s Record of Decision (ROD) is out of proportion to the environmental benefits it would achieve, and despite the 17 years it has taken… Continue Reading

Trump Track: EPA Beginning Anew at Portland Harbor Superfund Site?

Posted in CERCLA, Trump Track
Although no official pronouncement has been issued, it appears that EPA Headquarters is looking at resetting the scoreboard for the Portland Harbor Superfund site. EPA had already signaled  that it would be reviewing significant, long-unresolved Superfund sites with an eye toward streamlining the process.  However, the latest action on Portland Harbor may have the opposite… Continue Reading

Trump Track: EPA/DOJ Funding Split

Posted in EPA, Trump Track
EPA has proposed to end its funding of Superfund enforcement activities by the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD). In its proposed budget for FY 2018, EPA has cut the nearly $26MM that DOJ included in its budget for FY2018.  This represents a complete change from the practice since 1986, when… Continue Reading

Trump Track: WOTUS Wrangle

Posted in Trump Track, Water Law
We have strange bedfellows, as business groups, states and environmentalists maneuver before the Supreme Court over the Obama Administration regulation defining “waters of the US” (“WOTUS”) under the Clean Water Act (CWA). Organizations supporting and opposing the rule all argue that the Court should overrule the decision of the Sixth Circuit Court of Appeals holding… Continue Reading

Trump Track: Is Superfund Small Ball Best?

Posted in CERCLA, Trump Track
The most active agency in carrying out the Trump agenda in its first year has been the EPA, where there has been a raft of efforts to roll back the regulatory initiatives of the Obama Administration. However, in one area the agency has promised to take a more active approach, with Administrator Pruitt promising to… Continue Reading

Trump Track: Federal Environmental Civil Penalties Drop by 60%

Posted in Trump Track
Last week, the Environmental Integrity Project released its report on environmental enforcement during the first six months of the Trump administration. The Environmental Integrity Project, a nonprofit, nonpartisan group founded by former enforcement attorneys at EPA, found that civil penalties are down 60% on average compared to past administrations. The Environmental Integrity Project reviewed civil… Continue Reading

Ninth Circuit Addresses Finality Requirements for CERCLA Contribution Actions

Posted in CERCLA
The Ninth Circuit Court of Appeals revived a contribution action under CERCLA, and in the course of ruling, it addressed three issues of first impression in the Circuit regarding contribution litigation under CERCLA. Asarco, LLC v. Atlantic Richfield Company. First, it joined the Seventh Circuit in holding that a settlement entered into under an authority… Continue Reading

EPA Proposes Ban on Common Degreasing Chemical TCE

Posted in EPA
Yesterday, EPA announced its first proposed ban of a new chemical under the amended TSCA (Frank R. Lautenberg Act, Pub. L. No. 114-182 (2016)), which, among other changes, mandated  EPA risk assessments of all high-priority substances including chemicals already in commerce. Today’s proposed rule would ban trichloroethylene (“TCE”) for use in dry cleaning and aerosol… Continue Reading

The (much!) Higher Cost of Non-Compliance: Federal Civil Penalties Increase

Posted in EPA, Federal
EPA has released an interim final rule with penalty adjustments mandated by a new law (“Interim Rule” or “Rule”). Most importantly, the “catch up” adjustments under the Interim Rule carry quite a wallop for those subject to any of a wide variety of violations (rule available here). For example, the maximum daily penalty for violating… Continue Reading

Whither WOTUS?

Posted in EPA, Federal, Water Law
In June 2015, EPA and the Corps of Engineers released a rule to define “waters of the United States,” affectionately referred to as WOTUS.  This definition goes to the scope of federal jurisdiction over wetlands and other waters that are not obviously free flowing and navigable.  An in-depth analysis of the rule can be found… Continue Reading

New Amendments To TSCA Invigorate Chemical Regulatory Regime And Empower EPA

Posted in EPA, Health and Safety, Rulemakings
On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the Act) which amends the core provisions of the Toxic Substances Control Act (TSCA), an environmental law whose use and enforcement has dwindled somewhat over the years (Available here). TSCA regulates chemical manufacturing and usage, and… Continue Reading

Curiouser and Curiouser: Sixth Circuit Not Sure of Jurisdiction but Stays WOTUS Rule Anyway

Posted in EPA, Rulemakings, Water Law
Does this make sense to you?  Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act.  Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at… Continue Reading

EPA’s Audit Policy eDisclosure: Electronic Self-Reporting for Environmental Violations

Posted in EPA, Rulemakings
Reporting uner EPA’s audit policy, which has provided relief from gravity-based penalties to those who self-report, is about to become much easier.  This fall, EPA expects to launch a centralized web-based “eDisclosure” portal that will make self-disclosure just a mouse click away.  The requirements of the audit policy remain unchanged (e.g., violations must be disclosed… Continue Reading

CERCLA Settlements Get a Different Look: the Ninth Circuit May Have Set a New Level of Scrutiny in State of Arizona v. Tucson

Posted in CERCLA, EPA, Rulemakings
The Ninth Circuit has further defined the level of scrutiny required by a court when evaluating settlements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In State of Arizona v. City of Tucson, the Ninth Circuit refused to defer to the settling state agency and required the lower court to independently scrutinize the… Continue Reading

FERC Announces Technical Conferences Focused on Clean Power Plan

Posted in Electric Power, Federal, FERC
The Federal Energy Regulatory Commission has announced plans to hold a series of technical conferences around the country to discuss the impact of the proposed Clean Power Plan on electric utilities.  The first of these conferences will be a National Overview technical conference to be held at the FERC on February 19, 2015.  Subsequent regional… Continue Reading

The Space Between Draft and Final

Posted in Climate Change, EPA, Rulemakings
EPA has a lot to consider in finalizing its rule directing states to create programs to reduce greenhouse gas (GHG) emissions from fossil fuel fired electric generating units.  The public comment period on a recently proposed rule generated 1.6 million comments from companies, governmental agencies and members of the public. EPA targets June 2015 for… Continue Reading

Science Advisory Board Finally Weighs In on Waters of the U.S.

Posted in EPA, Rulemakings, Water Law
The Science Advisory Board has at last released its peer review  of EPA’s draft report on Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis, the technical support for the proposed rule on definition of “waters of the United States” under the Clean Water Act.  The SAB paper is generally supportive of EPA’s… Continue Reading

ECOS Releases “Waters of the U.S.” Paper

Posted in EPA, Federal, Water Law
On September 15, the Environmental Council of the States (ECOS) released a paper produced by the American College of Environmental Lawyers (ACOEL) on the new “waters of the U.S.” rules proposed by EPA and the Army Corps of Engineers.  The new rules are intended to bring clarity as to the jurisdictional reach of the federal government… Continue Reading

EPA Fixes Due Date for Comments on Its Proposed Regulations of Carbon Emissions from Existing Power Plants

Posted in Climate Change, EPA, Federal
Today, the EPA has published in the Federal Register the official version of its proposed regulations to curb carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act. 79 Fed. Reg. 34830. You can find the official version here. Public comments on the proposed regulations will now be due on… Continue Reading