Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Fourth Circuit: CWA Permit Shield Requires Compliance with Incorporated Quality Standards

A recent Fourth Circuit decision will have wastewater dischargers taking a closer look at their NPDES permits and state water quality standards. The court of appeals held, in Ohio Valley Environmental Coalition v. Fola Coal Co., No. 16-1024, that permit language incorporating state water quality standards required compliance with all such standards, including narrative standards not reflected in the permit’s effluent limits.  As a consequence, a source can only be assured that it is shielded from liability under the CWA if its discharges comply with both (a) effluent limits in the NPDES permit and (b) any water quality standards—even narrative standards—that the permit incorporates.  The decision raises questions about potential exposure and how to approach permit writers in the future. Read More ›

EPA Releases Final RMP Amendments, Awaits Response of New Administration

The U.S. Environmental Protection Agency has released a final rule updating the Accidental Release Prevention rules at 40 C.F.R. Part 68, which implement the Clean Air Act Section112(r)(7) risk management planning program. A pre-publication copy of the rule can be accessed here. Read More ›

OSHA “Clarifies” Employers’ Injury and Illness Recordkeeping Obligations

In the closing days of the Obama Administration, the Occupational Safety and Health Administration (OSHA) has issued a final rule that “clarifies” employers’ “continuing obligation” to make and maintain an accurate record of each recordable injury and illness beyond the six-month statute of limitations under the Occupational Safety and Health Act of 1970 (OSH Act). Once it takes effect, the new rule will allow OSHA to issue citations to employers for the failure to record an injury or illness up to six months following the five-year record retention period that would have applied to such record.  The final rule, published December 19, 2016,[1] is available here.  It aims to overturn the majority opinion in a 2012 ruling by the D.C. Circuit that rejected OSHA’s practice of citing employers up to five years after a failure to record a recordable injury or illness.  It is unclear whether the incoming Trump Administration will attempt to rescind this rule. Read More ›

Massachusetts Proposes New Greenhouse Gas Rules for Electric Generation, Natural Gas, and Transportation Sectors

On December 16, 2016, the Massachusetts Department of Environmental Protection (“MassDEP”) released draft rules that would impose new greenhouse gas (“GHG”) requirements on the electric energy sector, gas distribution systems, and certain aspects of the transportation sector.  Written comments on the proposed regulations are due on or before February 24, 2017, and public hearings are currently scheduled for February 6 and February 8, 2017. Read More ›

EPA’s Formaldehyde Standards for Composite Wood Products Pose Challenges for Industry, Particularly Importers

Importers, retailers, and others that sell goods containing plywood or other composite wood products face significant compliance challenges from EPA’s new Formaldehyde Emission Standards for Composite Wood Products (the Standards).  The final rule adopting the standards was signed on July 27, 2016 and finally published in the Federal Register on December 12, 2016.[1]  The Standards implement Title VI of the Toxic Substances Control Act (TSCA).  They are based on the formaldehyde emission limits of the Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products (ATCM) of the California Air Resources Board (CARB).  The Standards differ from the ATCM in several ways, but compliance with the ATCM will help substantially as companies work to meet their obligations under the Standards.  The key compliance deadline for the Standards is December 12, 2017. Read More ›

EPA’s Cooperative Federalism Approach to Nutrients in the Mississippi River and Gulf of Mexico Prevails in Fifth Circuit Remand

In a critical decision preserving state authority in water quality management, a U.S. District Court has ruled that EPA has broad discretion to not establish federal numeric nutrient water quality standards because the Clean Water Act (CWA) vests primary responsibility for this function in the states.  The decision in Gulf Restoration Network v. Jackson rebuffed efforts by a major coalition of environmental groups to compel EPA to take control of nutrient management criteria for a significant part of the country’s water.  Beveridge & Diamond principal Karen Hansen represented the National Association of Clean Water Agencies (NACWA) as an intervenor supporting EPA in the case, which has been litigated in the district court and the court of appeals since 2012. Read More ›

Beveridge & Diamond Secures Trial Win for City of Los Angeles, Striking Down Biosolids Ban on Two Constitutional Grounds

Following a two week bench trial prosecuted by Beveridge & Diamond Principals Jimmy Slaughter and Jamie Auslander and California based counsel Michael Lampe, the Tulare County, California Superior Court has struck down a voter initiative passed in 2006 in Kern County that banned the land application of biosolids (treated municipal wastewater sludge) to farmland in Kern County. Judge Lloyd Hicks wrote in a 48 page opinion that that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.” City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727 (Tulare Co. Super. Ct. Nov. 28, 2016).  The case is believed to be the first trial focused on the benefits and safety of recycling biosolids to farmland, a practice used by many of America’s largest cities for decades.  Read More ›

DC High Court Adopts Daubert Approach to Expert Testimony

In a direct victory for mobile phone manufacturers and service providers, and with implications for any other case involving expert testimony in the District of Columbia, the District of Columbia’s highest court abandoned the nearly century-old Frye test for admitting expert testimony in favor of the Daubert approach as embodied in Rule 702 of the Federal Rules of Evidence.  See Motorola, Inc. v. Murray, No. 14-CV-1350 (D.C. Oct. 20, 2016).  The decision to adopt the federal standard—following 39 states that have done so—came in an interlocutory appeal in litigation in which Plaintiffs allege long-term exposure to mobile phone radiation causes brain tumors.  The newly adopted standard likely means an uphill battle for Plaintiffs and their causation experts in this litigation.  Read More ›

New Jersey Court Bars Plaintiffs' Talc Experts, Dismisses Claims

In contrast to several courts in which juries have returned substantial awards in favor of plaintiffs making similar claims, a New Jersey state court dismissed two suits alleging talcum powder causes ovarian cancer after it found flaws in the  ethodology employed by Plaintiffs’ causation experts.  See Carl v. Johnson & Johnson, ATL-L-6546-14 (N.J. Super. Ct. Sept. 2, 2016).  The Court barred the Plaintiffs’ general and specific causation experts, leaving them unable to maintain
their claims. Read More ›

Inability to Identify Manufacturer of Products Dooms Plaintiff's Case

In an opinion that illustrates the challenges involved with proving causation in a product exposure case, a Kentucky appellate court found insufficient evidence of exposure to Defendants’ asbestos-containing products to sustain a products liability action.  See Mannahan v. Eaton Corp., No. 2013-CA-002005-MR (Ky. Ct. App. Jul. 18, 2016). Read More ›