On Thursday, the Senate confirmed Susan Parker Bodine as the Assistant Administrator of the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“OECA”).  OECA, the chief enforcement arm of EPA, coordinates the agency’s enforcement of numerous federal environmental laws within its authority.

This is the second leadership role at EPA for Bodine, who brings significant experience in environmental law to the position.  She formerly served as Assistant Administrator for the agency’s Office of Solid Waste and Emergency Response—now called the Office of Land and Emergency Management—under President George W. Bush.  Before returning to the EPA, Bodine served as Chief Counsel for the Senate Environment and Public Works Committee, from 2015 until this August.  She also served as Counsel to the House Transportation and Infrastructure Committee, and was engaged in private legal practice.

Continue Reading Senate Confirms Susan Parker Bodine as New Head of EPA’s Enforcement and Compliance Office

On November 22, 2017, Environmental Protection Agency (EPA) Administrator Pruitt signed a notice denying petitions to change the “point of obligation” under the Renewable Fuel Standard (RFS) program away from refiners and importers.  The notice, which was sent to the Federal Register for publication, provides a broad overview of EPA objections to the petitions.  EPA also posted on its website a final decision document explaining its denial in detail. Continue Reading EPA Denies Petitions to Change the RFS “Point of Obligation”

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

Last year, President Obama signed into law the amended Toxic Substances Control Act (TSCA). Congress made substantial changes with respect to how both existing and new chemical substances are regulated. Some of these changes are significant and will have a direct impact on US chemical manufacturers, importers, distributors and users. However, the US did not attempt to mimic the EU’s REACH Regulation.

This article provides a high-level comparison of the main building blocks of the two regimes, bringing out the main similarities and differences between them. Of course, these are two different jurisdictions and no direct comparison can be completely valid, but it is worth making the comparison nonetheless, because many companies operate across both regions and because other jurisdictions have mimicked REACH in their regulatory reform, whereas the US has chosen not to. Continue Reading Reformed TSCA and REACH: How Do They Compare?

The US EPA released its draft strategic plan for 2018-2022 on October 5, 2017.[1] Not surprisingly, the draft plan differs greatly from the Obama EPA’s last strategic plan. The change in administrations has produced innumerable shifts in the policies, goals and operations of the federal government. EPA’s draft strategic plan is emblematic of these shifts. Continue Reading Core Functions and Cooperative Federalism: EPA’s Draft Strategic Plan

In October 2015, EPA reduced the level of the National Ambient Air Quality Standards (“NAAQS”) for ozone from 75 parts per billion (“ppb”) to 70 ppb. What is happening concerning implementation of those NAAQS?

Although litigation over EPA’s decision to lower the ozone NAAQS remains in abeyance as the Trump Administration continues to consider whether the Agency should reconsider the rule or some part of it, the 2015 standard itself has not been stayed. Thus, the Clean Air Act requires that implementation of the standard proceed. One key step in implementation is promulgation by EPA of a list of areas where the standard is violated, including areas that contribute to standard violations in nearby areas. EPA’s identification of these “nonattainment” areas is a trigger for many of the Act’s control requirements. Continue Reading What’s Up with Air Quality Standards for Ozone?

Environmental and public-health groups have taken issue with the EPA’s rule establishing procedures for chemical risk evaluations under the revised Toxic Substances Control Act (TSCA), which allows the EPA to exclude certain conditions of use when assessing whether a chemical presents unreasonable risks. These groups fear the exclusions could provide a “loophole” allowing some chemical risks to go unaddressed. But putting those concerns aside, should companies affected by the rule actually want to take advantage of these exclusions? Are they really beneficial to regulated industries? Or do they risk undermining one of the primary goals that companies sought to gain by supporting TSCA reform—federal preemption of overlapping state restrictions?

Continue Reading You Can’t Win if You Don’t Play: How EPA’s Risk Evaluation Exclusions Limit TSCA Preemption

Over the last decade, regulators have accelerated their focus on vapor intrusion risk at hazardous cleanup sites. This has led to new cleanup standards, policies and guidance to evaluate potential risks, environmental investigation requirements for brownfield redevelopments, and the reopening of previously closed remedial actions. Recently, attention has turned from chronic to acute vapor intrusion risk. Although protection of human health is paramount, this recent focus has been plagued with concerns about the validity of the underlying science and a lack of comprehensive guidance from regulators on how to respond. This article explores the evolution of vapor intrusion regulation, particularly developments addressing acute risk, as well as trends in vapor intrusion- related litigation.

Continue Reading Vapor Intrusion: Acute Exposure Regulatory Developments and Litigation Trends

The good news about the Process Safety Management (PSM) standard is that it is a performance-based standard. The bad news about PSM, well, is that it is a performance-based standard. While it provides the operator some flexibility on complying, it can often lead to being second-guessed by an agency. Not only does the operator have to comply with the regulations, the operator must  comply with and document compliance with relevant codes and standards or Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). These include widely adopted codes such as the National Fire Protection Association (NFPA), consensus documents such as the American Society of Mechanical Engineers (ASME), non-consensus documents such as the Chlorine Institute (CI) and in most cases Internal Standards. Continue Reading Making Sense of and Complying with RAGAGEP