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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California Adopts Statewide Producer-Funded Pharmaceutical Household Drug and Sharps Take-Back Program

On September 30, 2018, Governor Brown signed SB 212, an act amending the California Integrated Waste Management Act to create a statewide takeback program for pharmaceuticals and sharps (the “Act”) from households. California joins Washington and New York in implementing statewide pharmaceutical takeback programs. By enacting SB 212, California also adds to existing producer-funded stewardship programs operating in the State for products ranging from paint to mattresses. Read More ›

EPA Proposes Rescinding Certain HFC Rules for Refrigeration and Air-Conditioning Appliances

On September 18, 2018, the U.S. Environmental Protection Agency (“EPA”) released an advance copy of a rule proposing to rescind the agency’s 2016 extension (“2016 Rule”) of certain appliance refrigerant leak repair rules to appliances that use non-ozone depleting substitute refrigerants such as hydrofluorocarbons (“HFCs”).  Additionally, the proposed rule requests public comment on whether, alternatively, the 2016 Rule’s extension of refrigeration management requirements to substitute refrigerants should be rescinded in its entirety.  Read More ›

“WOTUS”: A Tale of Two Rules While Litigation and Rulemaking Continue

On August 16, 2018, the U.S. District Court for the District of South Carolina issued a nationwide injunction on a Trump administration rule that has been preventing the 2015 rule that revised the definition of “waters of the United States” (“WOTUS Rule”) under the Clean Water Act (“CWA”) from taking effect.  In South Carolina Coastal Conservation League v. Wheeler, the Court held that the Trump administration violated the Administrative Procedure Act (“APA”) in promulgating the so-called “Suspension Rule,” which delayed implementation of the Obama-era WOTUS Rule for two years.  As a result, the 2015 WOTUS Rule applied in twenty-six states and Washington D.C.  Read More ›

Pair of Clean Water Act Decisions Creates Circuit Split over Discharges to Groundwater

On Monday, divided panels of the U.S. Court of Appeals for the Sixth Circuit issued a pair of decisions holding that Clean Water Act (“CWA”) Section 301’s prohibition on unpermitted discharges does not apply to pollutants that reach surface waters through groundwater.  In Kentucky Waterways Alliance v. Kentucky Utilities Co., No. 18-5115, and Tennessee Clean Water Network v. TVA, No. 17-6155, the Sixth Circuit became the third appellate court this year to decide whether discharges to surface waters through groundwater require National Pollution Discharge Elimination System (“NPDES”) permits.  Unlike the Fourth and Ninth Circuits, the Sixth Circuit rejected the theory that pollutants reaching navigable waters after passing through groundwater (or soil) are discharges that require NPDES permits. Read More ›

Ninth Circuit Creates New Challenge for Divisibility in Complex CERCLA Sites

The Ninth Circuit Court of Appeals in Pakootas v. Teck Cominco Metals, Ltd., affirmed the Eastern District of Washington’s decision to find Teck liable for more than $8.25 million in damages to the Colville Confederated Tribes, including $4.8 million in attorney’s fees, related to its liability under CERCLA for contamination to the Upper Columbia River. Pakootas, -- F.3d --, 2018 WL 4372973 (2018).  The court held that Teck’s divisibility of harm defense failed because Teck did not account for all of the harm at the site, and thus it failed to show that the harm was theoretically capable of apportionment.  The Court also held that costs of investigations by the Tribe’s expert consultants and attorney fees both qualified as recoverable costs of response and removal under CERCLA § 107(a).  Read More ›

NJDEP to Allow Capping as Remedial Option for VOCs with Groundwater Pathways

At the end of August, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance that allows volatile organic compounds (“VOCs”) released to groundwater to be left in place under certain circumstances; the change could provide considerable cost savings for parties responsible for such releases.  NJDEP’s new guidance will permit capping to be considered as a remedial option for sites with VOC risks or impacts to groundwater.  See Capping of Volatile Contaminants for the Impact to Ground Water Pathway.  The new policy supplements guidance issued in 2014, which allowed for capping of inorganic and semi-volatile organic contaminants under certain circumstances, but had not included VOCs, such as certain gasoline constituents, acetone, benzene, toluene, TCE, PCE, xylenes, and others.  See Capping of Inorganic and Semi-Volatile Contaminants for the Impact to Ground Water Pathway.  VOCs are often found in subsurface contamination at gasoline service stations, dry cleaners, and manufacturing facilities.  Read More ›

Massachusetts Supreme Judicial Court Upholds GHG Caps for Electricity Sector and Affirms the Continued Viability of Chevron-style Deference in Massachusetts

On September 4, 2018, the Massachusetts Supreme Judicial Court (SJC) issued an opinion in New England Power Generators Association v. Department of Environmental Protection (Case number SJC-12477; --- N.E.3d ---, 2018 WL 4224463) that upholds the “Cap Regulation” (310 Code Mass. Regs. § 7.74), which imposes declining limits on carbon dioxide (CO2) emissions from fossil-fuel fired power plants in Massachusetts.  The Cap Regulation was challenged by the New England Power Generators, who argued that: (1) the regulation exceeded statutory authority, (2) the regulation would actually cause an increase in electricity sector greenhouse gas (GHG) emissions, and (3) the regulation would impose limits well beyond the year 2020 and a “sunset provision” in the underlying law bars post-2020 regulation.  The SJC rejected each of these arguments and affirmed the validity of the Cap Regulation.  Read More ›

Cert Petition Seeks Supreme Court Review of Ninth Circuit’s Expansion of the CWA’s NPDES Program

Earlier this year, the Fourth and Ninth Circuits decided a pair of cases that have the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit program under the Clean Water Act (CWA). For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018), both courts rejected this assumption by holding that pollutants reaching surface waters via groundwater required NPDES permits. Read More ›

Interior Department Reorganizes into 12 “Unified Regions” – To What Effect On The Ground?

Department of the Interior (“DOI”) Secretary Ryan Zinke announced on August 29, 2018, DOI’s “final” version of its new reorganization plan, which creates 12 new “Unified Regions” primarily intended to coordinate and expedite decision making related to the land, water, resource management, and permitting functions of the various DOI bureaus, including the Bureau of Land Management (“BLM”), U.S. Fish and Wildlife Service (“FWS”), National Park Service (“NPS”), U.S. Geological Survey (“USGS”), Bureau of Reclamation (“BOR”), and Office of Surface Mining Reclamation and Enforcement (“OSMRE”).  The Bureau of Indian Affairs will not be affected. Read More ›

OSHA Proposes to Rescind Electronic Submission of Certain Injury and Illness Records

OSHA recently issued a Notice of Proposed Rulemaking that proposes to rescind the requirement for establishments with 250 or more employees to electronically submit their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) information to OSHA on an annual basis.[1] Under the proposed rule, employers subject to electronic reporting (those in the industries that OSHA has designated as “high risk” and establishments with 250 or more employees) will still be required to submit the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) information to OSHA on an annual basis.  OSHA’s stated rationale for this proposal is that it is an effort to protect “sensitive personal information from potential disclosure under the Freedom of Information Act.”

[1] 83 Fed. Reg. 36494 (Jul. 30, 2018). Read More ›