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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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 ›

Changes To CEQA Guidelines Coming To a Project Near You

On January 26, 2018, the California Natural Resources Agency (Resources Agency) released a Notice of Proposed Rulemaking for changes to the California Environmental Quality Act (CEQA) Guidelines. After holding public comment sessions, the Resources Agency revised its proposed changes and issued further proposed amendments on July 2, 2018. The public comment period for these amended revisions ended on July 20. The Resources Agency also amended its statement of reasons for the proposed changes to better explain its reasoning. The Resources Agency’s materials can be viewed hereRead More ›

EPA Proposes Affordable Clean Energy Rule to Replace Clean Power Plan

On August 21, 2018, the U.S. Environmental Protection Agency (EPA) proposed the Affordable Clean Energy (ACE) rule to establish guidelines for states to develop plans to address greenhouse gas emissions from certain existing fossil-fuel-fired power plants.  ACE would replace the Obama Administration’s 2015 Clean Power Plan (CPP), which EPA has proposed to repeal on the basis that it exceeded EPA’s authority.  In particular, the current Administration does not believe it has authority under Section 111 of the Clean Air Act to require regulated entities to take actions “outside the fenceline,” as contemplated by the CPP.  Accordingly, the ACE plan would impose only “inside the fenceline” requirements on electric generating units (EGUs). Read More ›

Environmental Groups Score First Victory to Expand Regulation of Stormwater Under the NPDES Program

Last week, the U.S. District Court for the Central District of California gave environmental groups a significant win in their bid to force EPA to regulate new sources of stormwater discharges under the Clean Water Act (“CWA”). The case, Los Angeles Waterkeeper v. Pruitt, No. 2:17-cv-03453, is one of several pending actions concerning EPA’s authority to require National Pollution Discharge Elimination System (“NPDES”) permits for sources of stormwater that are not currently regulated. If the court’s decision withstands a likely appeal, EPA will be required to prohibit or issue NPDES permits for discharges of stormwater from privately-owned commercial, industrial, and institutional (“CII”) sites like malls, office buildings, and parking lots. Read More ›

DOT and EPA Release Proposal to Roll Back Obama-era Emissions Standards for Automobiles

On August 2, 2018, the Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) and the Environmental Protection Agency (“EPA”) issued two related, proposed rulemakings, which together comprise the Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule.  The proposed rule, if adopted, would curb NHTSA’s Corporate Average Fuel Economy (“CAFE”) standards and EPA’s tailpipe carbon dioxide (CO2) emissions standards for passenger cars and light trucks for model years (“MY”) 2021 through 2026 that were issued in 2012.  The proposal also asserts that the Energy Policy and Conservation Act of 1975 (“EPCA”), which requires NHTSA to set national fuel economy standards for new motor vehicles, preempts any state, including California, from imposing or enforcing its own vehicle fuel economy standard.  Read More ›

Top Environmental Authority in China Proposes Amendment to the Solid Waste Law

On July 11, 2018, China’s Ministry of Ecology and Environment (“MEE”) released a draft proposal to amend the country’s solid waste statute.[1]  Among other changes, the draft proposed to restrict solid waste releases from industrial facilities under the pollutant emission permit program, prohibit all solid waste imports into China, require mandatory contracts between waste generators and third-party handlers, and increase penalties for violations. The deadline for submitting comments to MEE is August 18, 2018. Read More ›