EPA Centralizes Responsibility for Clean Water Act Jurisdictional Determinations

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum and delegation of authority that move responsibility for the EPA’s role in Clean Water Act Jurisdictional Determinations to EPA’s Assistant Administrator for Water. Responsibility for this role previously resided with regional EPA administrators. Jurisdictional Determinations are a critical aspect of the “dredge-and-fill” permitting requirements under section 404 …

EPA Seeks Comment on Possible Regulation of Groundwater Discharges

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain …

EPA Declines to Impose CERCLA Financial Assurance Regulations on Hardrock Mining

The U.S. Environmental Protection Agency (EPA) signed a final action declining to impose financial assurance regulations on the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This proposal was directed at managing the financial cost of hardrock mining, particularly the cost of cleanup in situations where the …

EPA Directive Provides Additional Opportunities for Stakeholder Participation in Consent Decree Negotiations

On October 16, 2017, EPA Administrator Scott Pruitt released a directive that instructs the agency to follow new procedures related to the settlement of lawsuits against the agency. Specifically, the directive requires EPA to: Publish online any notices of intent to sue that it receives from potential litigants. Publish complaints and petitions in which it …

DAPL Developer Sues Environmental Groups

In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued  Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated …

Trump Administration Working to Repeal and Replace the Clean Water Rule

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the …

Environmental Due Diligence—EPA Adds Subsurface Intrusion to Superfund Hazard Ranking System

Last week, EPA finalized a rule that will allow it to consider subsurface intrusion (most commonly found as “vapor intrusion”) when deciding whether to add a site to the CERCLA National Priorities List (“NPL”).  The addition will enable EPA, using its “Hazard Ranking System,” to directly consider the human exposure to contaminants that enter building …

Court Approves Volkswagen Partial Consent Decree: Tribes Entitled to $50 Million for NOx Emission Mitigation

On October 25, 2016, the federal district court in the Northern District of California approved the United States’ Amended Consent Decree to resolve claims against German automaker Volkswagen AG and related entities (VW) and to settle allegations of cheating emissions tests, deceiving customers, and excess nitrous oxides (NOx) emissions from VW and Audi diesel engine …