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insightClick on the button below for a full PDF of the Environmental Newsletter. View PDF
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insightVirginia has announced the phased approach that the Commonwealth will take to ensure critical populations will receive a COVID-19 vaccine, following guidance developed by the Centers for Disease Control and Prevention (CDC) and the Advisory Committee on Immunization Practices (ACIP), with input from the National Academies of Sciences, Engineering and Medicine. This phased approach was developed to facilitate a decrease in COVID-19 deaths and considers current local spread/prevalence of COVID-19 and COVID-19 vaccine production and availability.
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insightThe United States Department of Labor (DOL) on Wednesday announced publication of its Final Rule addressing independent contractor misclassification under the federal Fair Labor Standards Act.
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insightEPA has promulgated a final rule declining to impose final assurance requirements on the electric power, petroleum and coal manufacturing, and chemical manufacturing industries to clean up spills of hazardous substances.
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insightThe United States District Court for the Western District of Washington recently entered an order vacating U.S. Army Corps of Engineers permits issued pursuant to the Clean Water Act (CWA) and Rivers and Harbors Act (RHA). The Order serves as an important reminder to permittees and industry that NEPA cannot be ignored, and, despite the vast deference afforded to them by courts, agency permitting decisions are not incontrovertible.
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insightCongress addressed the issue of interstate transport of air pollution in the Clean Air Act by enacting a “Good Neighbor Provision.” That provision requires upwind states to eliminate their contributions to air pollution in downwind states. EPA has promulgated various rules to implement the Good Neighbor Provision, beginning with the NOx Budget Trading Program and including the Clean Air Interstate Rule and, most recently, the Cross-State Air Pollution Rule (CSAPR). These rulemakings address the interstate transportation of ozone. CSAPR is updated regularly to align with the current ozone National Ambient Air Quality Standard (NAAQS). In response to various legal challenges and to update CSAPR with respect to the 2008 ozone NAAQS, EPA amended CSAPR in 2016. In 2019, the D.C. Circuit in Wisconsin v. EPA found that EPA’s 2016 amendment only partially addressed downwind contributions from upwind states. Because upwind states were continuing to contribute to the inability of downwind states with moderate nonattainment areas to meet the July 2018 attainment date for the 2008 ozone NAAQS, the D.C. Circuit remanded the rulemaking and required EPA to revisit required reductions of upwind contributors.
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insightAs part of its Clean Water Act § 404 Permit Program, the Army Corps of Engineers regulates certain activities in “waters of the United States,” a regulatory term that includes wetlands. To determine the extent of its jurisdiction, the Corps makes an official confirmation of the geographic boundaries of waters and wetlands on a given property and whether those waters and wetlands are regulated under the Clean Water Act. This confirmation is called an approved “Jurisdictional Determination” (JD).
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insightThe threat of EPA administrative action often drives industry to consider quick, administrative settlements with state or local environmental agencies for even the slightest environmental violations. Unless the Biden Administration changes course, industries can now do the same to avoid federal civil actions for Clean Water Act violations, which heretofore were excluded from the exercise of enforcement discretion.
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insightThe Clean Water Act (CWA) provides various means of enforcement against violators of its permitting programs, including sanctions for those guilty of criminal negligence. The chief programs in this regard are the National Pollutant Discharge Elimination System (NPDES) program addressing discharges of wastewater and stormwater into regulated “waters of the United States” and the Section 404 program addressing discharges of dredge or fill material into such waters. For states and Indian tribes to be authorized by EPA to administer the NPDES program or the Section 404 program, the states and tribes must demonstrate sufficient authority for enforcement, including criminal enforcement, to ensure compliance with these programs within their respective jurisdictions.
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insightGenerators of hazardous waste have long understood the importance of emergency preparedness and prevention to regulatory compliance and facility safety. Contingency planning and coordination with emergency service providers have been requirements of RCRA regulations for many years. For states that have adopted the Hazardous Waste Generator Improvements Rule (HWGIR), however, new and more stringent requirements for emergency preparedness and prevention now apply. These states include Virginia, North Carolina and South Carolina, as well as 28 other states. All authorized states are required to adopt most aspects of the HWGIR, including those aspects discussed below, but many have not yet done so.