Author: Goldberg Segalla

Clean Water Act / Colorado / Emerging Issues
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Outside of Colorado, the Navigable Waters Protection Rule Takes Effect

As previously discussed in the Environmental Law Monitor, the Trump Administration has taken action throughout 2020 to narrow the scope of which wetlands and waterways are protected under the Clean Water Act (CWA). The recently limited rule took effect on June 22, 2020, which in essence, opens the doors for developers anxious to get to work ahead of future legal action and the 2020 presidential election.

The EPA first unveiled its planned Navigable Waters Protection Rule in January 2020. The regulation, also known as …

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New Jersey
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NJDEP Extends Comment Period for Proposed Revisions to Remediation Standards Due to Pandemic

The New Jersey Department of Environmental Protection (NJDEP) is required to develop remediation standards for contaminated sites to be protective of the public health, safety, and environment pursuant to the state’s Brownfield and Contaminated Site Remediation Act. In April, the NJDEP published proposed revisions to the remediation standards, codified at N.J.A.C. 7-26D. Since the proposed revisions were announced amid the beginning of the COVID-19 pandemic, the public comment period, originally scheduled to close on June 5, 2020, was extended to August 5, 2020 after the …

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EPA
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Mercurial Mercury Reporting: A Second Circuit Story

The Natural Resources Defense Council and the State of Vermont challenged the Environmental Protection Agency’s recently-enacted Mercury Reporting Rule, and they came away with a mixed bag. The case came before the U.S. Court of Appeals for the Second Circuit, which issued its decision on June 5.

The Toxic Substances Control Act directs the EPA to promulgate rules requiring manufacturers and processors of chemical substances to maintain records of their use of chemicals and report that information to the EPA. In 2016, Congress amended the …

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Clean Water Act / EPA
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Pencils Down! New EPA Rule Limits States’ Time and Ability to Review Energy Infrastructure Projects

On June 1, the United States Environmental Protection Agency announced it had enacted a rule to limit states’ ability to block the construction of energy infrastructure projects. Under the rule, first proposed in August 2019, the EPA will alter Section 401 of the U.S. Clean Water Act to make it impossible for a state to block a water permit for a project for reasons other than direct impacts of discharges into state waters and set a one-year deadline for a decision. The proposed rule can …

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Water Contamination
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National Implications of New Jersey Color Coded HAB Warnings

As many readers are aware, harmful algal blooms, or HABs, have presented significant concerns for many states with lake regions and communities. HABs occur when algae grows out of control in an area, resultantly producing toxic or harmful effects on people, fish, marine mammals, and birds. There are a variety of HAB types, as they can be caused by a variety of algal groups with different chemical toxin compositions. The human illnesses caused by HABs, though rare, can be debilitating or even fatal. As a …

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COVID-19 / EPA
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EPA’s COVID-19 “Enforcement Discretion” Policy Challenged in Suit Commenced by Nine States’ Attorneys General

The United States Environmental Protection Agency (U.S. EPA) continues to face backlash over its policy relaxing certain monitoring and reporting obligations under various federal environmental laws amid the COVID-19 pandemic. Last week nine states’ attorneys general sued the U.S. EPA in the Southern District of New York in the action titled State of New York et al. v. U.S. Environmental Protection Agency et al., No. 1:20-cv-03714, in which New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia contend the U.S. EPA’s decision …

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California / Clean Water Act / Emerging Issues / EPA
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States Bring WOTUS Rule Back to Court

The state of California continued its crusade against the Trump Administration this month, filing a lawsuit against the U.S. EPA, challenging the agency’s replacement for the defunct 2015 Waters of the United States Rule (WOTUS). Sixteen other states joined the lawsuit, which was filed in the Northern District of California. The Army Corps of Engineers (ACE) was also named as a defendant in the lawsuit.

The definition of “Waters of the United States” (WOTUS) as used in the Clean Water Act has been disputed for …

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CERCLA
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SCOTUS Plays Red Light, Green Light in CERCLA Decision

The Supreme Court issued a landmark CERCLA decision in Atlantic Richfield Co. v. Christian. Most notably, the court held that CERCLA did not deprive Montana state courts of jurisdiction over state law trespass, nuisance, and strict liability claims brought by owners of land within a Superfund site, even where the landowners sought a cleanup that went beyond the remediation plan approved by the EPA. However, the court also held that the landowners were potentially responsible parties under CERCLA, and therefore the landowners’ remediation plan …

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Agriculture / EPA
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Close Only Counts with Horseshoes, Hand Grenades, and Dicamba Applications? Suit Seeks to Overturn EPA’s Decision to Allow Expanded Use of Dicamba

The Ninth Circuit Court of Appeals has heard from the parties in a suit challenging the U.S. Environmental Protection Agency’s decision to allow more widespread applications of dicamba. In 2016, the EPA approved dicamba for a conditional two-year registration. The agency allowed the more widespread use of dicamba, previously considered a volatile herbicide, as long as incidents of the pesticide harming other crops “are not occurring at unacceptable frequencies or levels.” In 2018, despite more than 4,200 official complaints that alleged damage to at least …

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Clean Water Act / Groundwater Monitoring
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CWA Alert: High Court Establishes New “Functional Equivalent” Test for Permitting Related to Groundwater Discharge

Last week, the United States Supreme Court provided additional guidance regarding the application of the Clean Water Act. In short, the Clean Water Act requires the federal government to regulate certain groundwater pollutants that find their way into navigable waters such as oceans, rivers and streams. 

The recent Supreme Court opinion has been considered by many to constitute a compromise of opposing positions, as it rejects the Trump Administration’s goals of lesser regulation, but also eliminates a Ninth Circuit court ruling that would have increased permitting requirements related to …

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