LATEST INSIGHTS

California / Clean Water Act / Emerging Issues / EPA
Posted by:

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 …

Continue Reading
COVID-19 / Water Contamination
Posted by:

COVID-19 and Drinking Water: An Update Amid Further Scrutiny

As the nation continues to navigate its way through the Coronavirus Disease (COVID-19) pandemic, we wanted to pass along some updated information from the Centers for Disease Control and Prevention (CDC) and the U.S. Environmental Protection Agency (U.S. EPA). Our blog post from March 19, 2020, remains a good primer on COVID-19 and drinking water, but there are a few updates to provide amid what appears to be an uptick in speculation about the transmission of the virus in sewage.

Two researchers at the …

Continue Reading
CERCLA
Posted by:

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 …

Continue Reading
Agriculture / EPA
Posted by:

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 …

Continue Reading
Clean Water Act / Groundwater Monitoring
Posted by:

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 …

Continue Reading
COVID-19 / Emerging Issues / Water Contamination
Posted by:

Amid Covid-19 Concerns, Premises Owners and Managers Should Not Forget about Legionella

It would be hard to imagine there is anyone in the country who is unaffected, let alone unaware, of the dramatic steps imposed by federal, state, and local governments to slow the spread of the COVID-19 virus. However, government restrictions prohibiting the operation of many “non-essential” businesses, bans against large gatherings, “stay at home orders,” and mandatory remote employment have a major impact beyond the obvious immediate economic hardships. They also have caused thousands of buildings and facilities to remain unoccupied or at best occupied …

Continue Reading
COVID-19 / EPA
Posted by:

Environmental Groups Sue EPA Over Relaxation of Enforcement of Environmental Laws Due to COVID-19

On April 16, 2020 a coalition of environmental groups commenced the action National Resources Defense Council, et al. v. U.S. EPA et al., No. 20-3058, in the Southern District of New York, over concerns about the EPA’s policy on “enforcement discretion” in response to the COVID-19 pandemic. The plaintiffs are demanding that the EPA be compelled to respond to a Petition for Emergency Rulemaking filed on April 1, 2020, requesting that the EPA publish an interim final rule to ensure prompt public notice of …

Continue Reading
CERCLA
Posted by:

There is No Full and Final Settlement Under CERCLA

The U.S. Supreme Court this week ruled in Atlantic Richfield Co. v. Christian that state law claims are still valid against landowners who have entered into settlements with the EPA pursuant to CERCLA. In this case, Atlantic Richfield Co. (Arco) had purchased the Anaconda Smelter site in Montana in 1977, where smelting had been taking place since 1884. In 1983, the site was designated as a Superfund site, and Arco worked with the EPA for approximately 35 years to remediate it. In 2008, landowners within …

Continue Reading
COVID-19 / EPA
Posted by:

U.S. EPA Issues Interim Guidance On Site Field Work In Times Of COVID-19

As the U.S. Environmental Protection Agency (EPA) continues to calibrate its response to COVID-19, the agency issued interim guidance on how to conduct environmental cleanups in light of the ongoing pandemic.  The guidance applies to cleanups under CERLCA, RCRA, the Toxic Substances Control Act, the Oil Pollution Act, and the Underground Storage Tank program.

The interim guidance does not provide any blanket work stoppage, nor does it toll any deadlines.  Rather, it provides that the EPA continues to make decisions about continuing, reducing, or pausing …

Continue Reading
EPA / PFOA / PFOS / SDWA
Posted by:

U.S. EPA Takes Key Step Toward Regulating PFOA and PFOS

As the virus pandemic has consumed our daily news, even some of the most important developments in the environmental world seem to have floated under the radar. Last month, the U.S. Environmental Protection Agency (EPA) issued an initial regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA)—the two most notorious substances in the family of thousands of similar “forever chemicals” also collectively referred to as PFAS. 

The EPA’s announcement—a little over a year following its release of …

Continue Reading