On May 12, 2016, the EPA proposed a rule (RIN 2060-AN36) which would remove the exemption for site cleanup activities under the hazardous waste statutes from the emissions standards for hazardous air pollutants under the Clean Air Act. The proposed rule would amend the National Emission Standards for Hazardous Air Pollutants (“NESHAP”), Site Remediation Rule, to include activities taken under CERCLA and RCRA, as well as RCRA corrective actions and orders. Under the amended rule, the NESHAP permitting requirements would apply to site activities that involve the removal and treatment of hazardous substances from soil or groundwater, the removal of… Read more
Tag: Phillip Hoover
High Court Rules in Favor of Landowners Over Army Corps of Engineers Objections
In an 8-0 decision, the United States Supreme Court held that designating a property as a Water of the United States was a final agency action. Landowners now have the ability to challenge designations of Waters of the United States before penalty actions are commenced. This decision gives landowners greater flexibility in fighting an erroneous designation. A landowner can now file a challenge to a wetlands designation without the same risk regarding fines. For more information, please contact Phillip Hoover.
Contribution Claims Under CERCLA Limited where Party Seeking Contribution has Settled with Federal Government
A federal court in the Eastern District of Wisconsin has held that a party entering into an agreement with the federal government to settle a claim for liability under the Superfund law may only pursue a contribution claim for payments that were made under the agreement. Under the Superfund law, defendants face joint and several liability, while contribution claims are limited to a defendant’s equitable share of the cost of the remediation at the site. The plaintiff in this case, Appvion, Inc., filed a claim against the U.S. Army Corp of Engineers stating that its dredging activity exacerbated the contamination… Read more
Opponents of Clean Power Plan Seek Two Days of Oral Argument
Oral arguments in the challenge to the Clean Power Plan are currently scheduled for June 2 and 3 before the US Court of Appeals for the District of Columbia. Opponents of the Clean Power Plan are seeking two days of oral arguments, with time divided between several topics. On the first day, the parties would address whether the Clean Power Plan impermissibly forces utilities to shift energy generation away from coal-fired power to renewable sources. They would also address whether the U.S. Environmental Protection Agency (“U.S. EPA”) can regulate carbon dioxide from power plants under Section 111(d) of the Clean… Read more
States Challenge EPA’s Clean Power Plan
More than two dozen states, along with industry, utility and other groups, have joined a lawsuit challenging the EPA’s Clean Power Plan. The challengers argue that Section 111(d) of the Clean Air Act does not authorize the EPA to implement the Clean Power Plan as currently written. The plaintiffs assert that the EPA’s rule would fundamentally transform the domestic energy sector, and that the Clean Air Act does not authorize the agency to make such sweeping changes. According to statements from Plaintiffs, the case is not about the wisdom of any particular policy; rather, it is about whether the EPA… Read more
EPA Issues Guidance on Remediation at Mining Sites
The U.S. EPA has issued guidance for the safe removal and remedial actions associated with hard rock mining. The action by the U.S. EPA was taken in response to the 3 million gallon spill at the Gold King Mine in Colorado which was triggered by the US EPA’s remedial activities at the site. The U.S. EPA has stated that the guidance document’s purpose is to assist its regional offices in physical year 2016 to plan for clean-up activities at hard rock and mineral processing sites which have fluid hazards such as the Gold King Mine. The 12-page guidance document states… Read more
Former EPA Administrators Defend Clean Power Plan
The U.S. EPA contends that shifting electricity generation away from coal-fired utilities as required by the Clean Power Plan (the “CPP”) constitutes a permissible system of emission reduction under the Clean Air Act (the “Act”). Two former EPA administrators have expressed support for this interpretation, asserting that the Act was broadly worded to reflect Congress’s intent to allow EPA the flexibility to address emerging air pollution problems without having to seek revisions to the Act itself. The current EPA administration has determined that the Act’s requirement that EPA determine the “best system” for cutting carbon dioxide emissions is broad enough… Read more
PHMSA tightening legacy pipeline and consequence area regulations for Natural Gas Pipelines
Pipeline and Hazardous Materials Safety Administration’s (PHMSA) March 16 proposed regulations for natural gas pipeline safety focuses on legacy pipe integrity. Legacy pipe is a type of pipe no longer manufactured and that PHMSA considers to have potential problems related to manufacturing imperfections. Legacy construction techniques are historic practices no longer used for construction or repair, including non-standard fittings and certain joints and couplings. PHMSA’s March 16 proposal would require enhanced inspection and integrity programs for legacy pipelines, and those in a newly created ‘moderate consequence area.’ PHMSA had already required enhanced programs for ‘high consequence areas’ – those with… Read more
Supreme Court Upholds $5.8 Million Judgment for Employee Time to Change Into and Out of Safety Equipment
OSHA Issues Final Rule With More Stringent Silica Exposure Limit On March 24, 2016, the Occupational Health and Safety Administration (OSHA) issued a final rule, which among other things, significantly reduces the permissible exposure limit (PEL) for workers’ exposure to respirable crystalline silica from 100 micrograms per cubic meter of air (averaged over an 8-hour shift) to 50 micrograms per cubic meter. The new OSHA rule impacts a wide range of industries including construction, manufacturing, oil and gas production, and railroads. In addition to the more stringent PEL, the new rule includes monitoring, training, record-keeping, housekeeping, and other requirements for… Read more
EPA Increases Oversight of Drinking Water Program
The U.S. EPA has announced its intention to increase oversight of state drinking water programs in light of the crisis occurring in Flint, Michigan. Federal officials will meet with and work with each state agency to improve their implementation of the EPA’s existing rules aimed at controlling lead and copper in drinking water. Drinking water standards are set by the federal government pursuant to the authority of the Safe Drinking Water Act (SDWA); however, authority to implement the terms of the SDWA has been largely delegated to individual states. The U.S. EPA has set a new priority on assisting states… Read more