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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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The Fourth Circuit Limits the Clean Water Act’s Permit Shield Defense

The Fourth Circuit ruled last week that applicants for new or reissued Clean Water Act (“CWA”) Section 402 individual permits – known as National Pollutant Discharge Elimination System (“NPDES”) permits – must consider the absence or presence of some 135 substances before the applicants can be shielded from liability for the presence of these substances in the permitted discharges. See Southern Appalachian Mtn. Stewards, et al. v. A & G Coal Corp. (“SAMS”), App. No. 13-2050, slip op. at 10 (4th Cir. July 11, 2014). The Fourth Circuit’s decision has ramifications for all CWA individual permit applicants.  Read More ›

Comments Due August 11 on EPA’s Amended Export Pesticide Labeling Requirements

In EPA’s ongoing effort to clarify labeling requirements for pesticide products intended solely for export from the United States, the Agency withdrew its April 2014 direct final rule and reissued the same regulatory text as a proposed rule on July 11 (79 Fed. Reg. 39975 and 79 Fed. Reg. 40040, July 11, 2014). This action is procedural: EPA opened a docket and is accepting comments until August 11 on the same language that was included in its April 2014 publication. Companies that export pesticides thus have an additional opportunity to provide input on EPA’s export pesticide labeling requirements.  Read More ›

UARG v. EPA: Is the Tailoring Rule All Dead or Just Part Dead?

Around town here in Washington, D.C., there has been much discussion of the meaning and impact of the Supreme Court’s decision in UARG v. EPA. The prevailing view seems to be that the Tailoring Rule has been effectively, if not expressly, vacated. As explained below, it may be premature to rule out the Tailoring Rule in its entirety – at least before EPA speaks to the issue.  Read More ›

Battery Interest Groups Release Model Legislation for Extended Producer Responsibility

On June 12, 2014, the Corporation for Battery Recycling, the National Electric Manufacturers Association (NEMA), the Rechargeable Battery Association (PRBA) and Call2Recycle, Inc. released model legislation addressing the collection and recycling of both primary and small rechargeable consumer batteries. The model legislation arrives on the heels of the Vermont legislature’s recent passage of H.695, the first law in the country mandating extended producer responsibility for the recycling of single-use primary batteries.   Read More ›

Supreme Court Holds That Industrial Sources Cannot Be Required to Obtain PSD or Title V Permits Based Solely on Their Greenhouse Gas Emissions

On June 23, the Supreme Court, in Utility Air Regulatory Group v. EPA, held that an industrial facility’s greenhouse gas (GHG) emissions alone cannot may not be the basis for subjecting the source to the permitting requirements of the PSD and Title V provisions of the Clean Air Act, but if the source does a capital project that would be subject to regulation under these provisions for more conventional pollutants, permitting authorities may impose emissions limits on emissions of GHGs from those sources.

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EPA’s CAIR Memo Escapes Challenge in D.C. Circuit; Petition Dismissed on Standing Grounds

On June 13, 2014, the United States Court of Appeals for the District of Columbia dismissed, for failure to demonstrate standing, petitioners’ challenge to the United States Environmental Protection Agency’s memorandum regarding implementation of the 2005 Clean Air Interstate Rule after the Transport Rule had been vacated.  Sierra Club v. EPA, No. 13-1014, 2014 U.S. App. LEXIS 11002 (D.C. Cir. Jun. 13, 2014).

Read the full alert on our website. 

President Obama Signs the Water Resources Reform and Development Act into Law, the First Water Funding Legislation Since 2007

On June 10, President Obama signed into law the Water Resources Reform and Development Act, the first water funding legislation in seven years. In a rare showing of congressional bipartisanship, the WRRDA passed both the House (414-4) and the Senate (91-7) with nearly unanimous votes, sending a clear message that ports and coastal developments are key elements of our nation’s infrastructure.

Read the full alert on our website.
 

Supreme Court Rules Against Tort Plaintiffs, Holding CERCLA Does Not Preserve Property Contamination Claims Barred by State Statutes of Repose

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from contaminated sites.  CTS Corp. v. Waldburger, 2014 U.S. LEXIS 3992 (June 9, 2014).  Specifically, the Court considered whether Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as the Superfund law or CERCLA), which preempts a state “statute of limitations,” also preempts a state statute of repose.  In a 7-2 decision, the Court held it does not, reversing a Fourth Circuit ruling and resolving a split in the lower courts.  In an interview with Law360, Beveridge & Diamond principal Jimmy Slaughter observed that that the Waldburger decision was a textbook case of statutory interpretation.

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D.C. Circuit Court Strikes Down EPA “Summit Directive,” Voids Attempt to Apply Differing Aggregation Policies Across the Country

On May 30, 2014, the District of Columbia Circuit struck down the United States Environmental Protection Agency’s (EPA) “Summit Directive,” preventing EPA from adopting conflicting air permit aggregation policy in different parts of the country depending on where federal courts have upheld or overturned that policy, resolving a challenge brought by the National Environmental Development Association’s Clean Air Project (“Clean Air Project”). In the short term, National Environmental Development Association’s Clean Air Project v. EPA (D.C. Cir. May 30, 2014) means that it will be unlawful for EPA to use the “functionally interrelated” test to determine whether equipment and facilities are “adjacent” for purposes of Clean Air Act stationary source permitting determinations, including in natural gas shale plays across the country and with regard to facilities in other industry sectors with dispersed physical assets that are in close proximity.  

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Comment Period Closing Soon on New FDA Food Transport Rule

Regulations proposed earlier this year by the U.S. Food and Drug Administration  would create new requirements applicable to shippers, carriers and receivers of human and animal food transported by rail and/or motor vehicle. Key requirements of the proposed regulations include:

  1. an obligation on shippers to provide written instructions to the carrier regarding conditions necessary for the safe transport of the particular food items being shipped;
  2. obligations on shippers and receivers to load/unload food in a manner that is sanitary and prevents spoilage; and,
  3. obligations on carriers to provide appropriate vehicles and transportation equipment, maintain and store vehicles in a sanitary manner, and provide training to personnel related to potential food safety issues.

Read the full alert on our website.