As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start. Continue Reading EPA Announces Shift from National Enforcement Initiatives to National Compliance Initiatives
Judicial review of state agency regulatory orders in California has long been seen as an exercise in futility as state courts typically give significant deference to agency determinations. However, two recent decisions by California Superior Courts have bucked that trend and may provide renewed hope that success at the trial court level is not out of reach. Continue Reading Scoring Gold at the Superior Court: California Water Boards’ Regulatory Authority Successfully Challenged
On February 7, 2018, US Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a proposed rule to establish user fees to defray EPA’s costs of administering its responsibilities under the Toxic Substances Control Act (TSCA), as amended by the 2016 Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). EPA estimates in the proposed rule that it will collect about $20.05 million per year in user fees, not counting any user fees associated with manufacturer-requested risk evaluations, which would range from $1.3 million to $2.6 million per evaluation. Continue Reading EPA’s Proposed TSCA Fees Rule – Key Issues
As part of the Bipartisan Budget Act of 2018, Congress significantly increased and extended the Section 45Q tax credit for sequestration of carbon oxides. This has been a top priority of carbon capture and sequestration (CCS) supporters for several years.
CCS is considered to be essential to global efforts to reduce CO2 emissions. The world’s most respected analysis organizations all estimate that fossil fuel use will increase in the coming decades, even with energy efficiency improvements and vast increases in renewable energy. Continue Reading Section 45Q Tax Credit Enhancements Could Boost CCS
Last October, the European Commission published its Work Programme for 2018. In the environmental area, a prominent topic is the EU initiative with respect to a ‘circular economy.’ This concept involves a transition to a “stronger and more circular economy where resources are used in a more sustainable way.”
The idea is to “close the loop” of product lifecycles through greater recycling and re-use, so as to realize benefits for both the environment and the economy. Simultaneously, the EU’s circular economy strategy should “extract the maximum value and use from all raw materials, products and waste,” “foster energy savings,” and reduce “Green House Gas emissions.” Accordingly, the Commission’s proposals cover the full lifecycle of products: from production and consumption to waste management and the market for secondary raw materials.
WOTUS, an acronym that has received a lot of attention in recent years, stands for the “waters of the United States.” When Congress enacted the Clean Water Act (“CWA” or the “Act”) in 1972, it prohibited “the discharge of any pollutant by any person” into navigable waters without a permit. The Act defines navigable waters as the “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12). But Congress failed to, in turn, define the words “waters of the United States,” and the Supreme Court has noted that these “words themselves are hopelessly indeterminate.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (J. Alito, concurring). The meaning of these words matters because violations of the CWA are subject to substantial criminal and civil penalties, so knowing whether a feature on your site is a WOTUS subject to federal jurisdiction has important consequences. Continue Reading Navigating the CWA’s Reach: What’s Happening with WOTUS?
A New Jersey court recently held that an electrical products manufacturer was entitled to coverage rights provided by a predecessor’s commercial general liability policies if it was found liable for environmental remediation costs as a result of cleanup efforts by the US Environmental Protection Agency (EPA) along a 17-mile portion of the Passaic River in New Jersey. Continue Reading New Jersey Decision Highlights Importance of Reviewing Historical Liability Insurance Policies
New chemicals of concern, new scientific and technical developments, newly discovered wastes, or natural disasters can add up to new CERCLA liabilities. When the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) was passed in 1980, it did not address the finality of judgments and settlements for the cleanup of contaminated sites. Some early settlements with EPA provided a complete release from all future CERCLA liability, but that later changed when the United States Environmental Protection Agency (“EPA”) began to limit the scope of covenants not to sue to specified “matters covered” by the settlement. The 1986 CERCLA amendments in section 122(f)(6), 42 U.S.C. § 9622(f)(6)(1) permanently made the change to require “reopeners” in all but a few limited circumstances. Continue Reading Reopened CERCLA Liability: New Causes for Concern?
With its proposed revisions to California’s hazardous waste management regulations, the California Department of Toxic Substances Control (DTSC) continues to make California’s hazardous waste management program more onerous and complex than the federal Resource Conservation and Recovery Act (RCRA). DTSC proposes substantial changes to hazardous waste personnel training requirements, financial assurance obligations, and hazardous waste permitting decisions. Almost every facility that manages hazardous waste in California will be impacted if DTSC’s proposal is finalized. Public comment on DTSC’s proposed revisions remains open through November 6, 2017. Continue Reading Proposed Changes to California’s Hazardous Waste Regulations Could Significantly Impact Your Operations
The stakes are high for anyone facing environmental liability in the wake of superstorms like Hurricanes Katrina, Sandy, Harvey, Irma, and Maria. If you are among the parties potentially liable for the costs to clean up a release of oil or hazardous substances caused by a major storm event, you may be thinking about a possible “act of God” defense. You may want to think again. In practice, the availability of this defense has proved elusive. It is still a good idea, however, to minimize risk in planning for the next “big one.” Ultimately, advance actions taken to avoid or mitigate the impacts of natural disasters may be the difference between being excused from or being saddled with cleanup liability. Continue Reading Viability of the “Act of God” Defense in a Superstorm World