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insightClick on the button below for a full PDF of the Environmental Newsletter. View PDF
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insightOn the latest episode of Williams Mullen's Benefits Companion, host Brydon DeWitt explains the Department of Labor’s Disaster Relief Notice that extends certain filing and notification time-frames applicable to employee benefit plans and their participants and beneficiaries, including special enrollment time-frames, COBRA deadlines and ERISA claims procedure deadlines in response to the COVID-19 emergency.
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insightLast March, EPA issued a memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The memorandum announced a temporary policy regarding EPA’s enforcement of environmental obligations during the COVID-19 public health emergency. Pursuant to that memorandum, if the pandemic constrains a facility’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, the facility can document that fact and potentially avoid enforcement. EPA said in the memo that it “does not expect to seek penalties for violations” where it agrees COVID-19 is the cause of the noncompliance. The memorandum also established certain notification obligations if the facility expected to miss certain obligations and milestones in EPA administrative settlement agreements.
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insightThe “not in my back yard” (NIMBY) doctrine taking hold across the United States was recently dealt a setback in South Carolina. The United States District Court for the District of South Carolina, Florence Division, recently determined that a State law regulating mine permitting expressly preempts a County ordinance requiring a separate mine permit from the local government. The case is instructive because it shows that local governments may not accord themselves “veto power” over state programs they do not like simply by enacting a local ordinance.
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insightThe Regional Greenhouse Gas Initiative (RGGI) is a cooperative effort among 10 northeastern states to cap and reduce CO2 emissions from fossil-fueled power plants. A bill passed in the 2020 Virginia General Assembly Session and signed into law has kick-started Virginia’s preparation to participate in RGGI. With the General Assembly shifting to a Democratic majority in November 2019, this change was expected. The previous General Assembly stalled Governor Ralph Northam’s efforts to participate in RGGI in 2020. However, the General Assembly’s pivotal legislation sent state environmental regulators to work to expedite entry into RGGI on January 1, 2021.
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insightTwo recent executive orders (“EOs”) issued by President Trump require additional efforts by federal agencies to facilitate regulatory reform and to expedite infrastructure projects, relying greatly on emergency and special exception authorities within federal statutes and regulations. One EO, issued May 19 and entitled, “Executive Order on Regulatory Relief to Support Economic Recovery,” focuses on general regulatory relief in the face of the COVID-19 pandemic (“Regulatory Relief EO”). The second EO, issued June 4 and entitled, “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” requires agencies with permitting, oversight and review roles under various environmental and other programs to expedite review and processing of these projects (“Infrastructure Review EO”).
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insightA federal court in Pennsylvania recently ruled a U.S. Steel Corp. manufacturing facility was not required under CERCLA to notify federal authorities of releases to the air in excess of emission limits in its air permits. This ruling provides an expansive reading of CERCLA’s “federally permitted release” exemption for release reporting of air emissions and is favorable for manufacturers.
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insightEPA recently issued a final rule amending Toxic Substances Control Act (TSCA) regulations concerning “small manufacturers” of chemical substances. Companies that meet the regulatory definition of a “small manufacturer” of chemical substances are exempt from certain reporting and recordkeeping obligations under TSCA. The amendment, which became effective on June 29, 2020, increased total annual sale thresholds in the definition, which in turn increased the number of companies eligible for the exemption.
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insightIn 2001, EPA promulgated the National Emission Standards for Hazardous Air Pollutants (NESHAP) for pulp and paper combustion sources. The rule addressed some, but not all, of the hazardous air pollutants (HAPs) these sources are known to emit. In 2017, EPA conducted its first review of the NESHAP, but decided to review only the emission limits on HAPs already controlled by the NESHAP. The Louisiana Environmental Action Network (LEAN) and other environmental groups took issue with the fact that EPA’s review did not address every HAP the pulp and paper source category is known to emit. They petitioned the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to review EPA’s action. In a recent decision, the Court agreed with the petitioners and found that section 112 of the Clean Air Act (CAA) requires EPA to consider and address all 190 listed HAPs when issuing or revising NESHAPs.
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insightReal Estate Partners Alyssa Carducci Embree and Robby Lawson discuss the responsibility for rent relief during a forced closure, landlord/tenant workouts for tenant’s continued operation in the premises, and tenant exit strategies if the tenant cannot continue to operate.