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11 TS Environmental Partners among Best Lawyers in America; Brooks Smith honored as “Lawyer of the Year” in Richmond, VA

Troutman Sanders is pleased to announce that more than 115 of its lawyers have been selected for inclusion in the Best Lawyers in America© 2017 edition. Among this list are 11 of our Environmental and Natural Resources lawyers, including Gregory W. Blount, Randy E. Brogdon, Margaret Claiborne Campbell, William M. Droze, Douglas A. Henderson, Hollister “Holly” A. Hill, John H. Johnson, Jr., Carroll “Mack” W. McGuffey III, and Andrea L. Rimer in our Atlanta, Georgia office.; Peter S. Glaser in Washington, D.C.; and Brooks M. Smith in Richmond, VA.

Additionally, Best Lawyers® honored Brooks Smith among the 11 Troutman Sanders partners selected as “Lawyers of the Year.”

Congratulations to Brooks Smith and all of our Environmental and Natural Resources lawyers!

 

August 19, 2016   Comments Off on 11 TS Environmental Partners among Best Lawyers in America; Brooks Smith honored as “Lawyer of the Year” in Richmond, VA

Troutman Sanders Environmental Practice Expands to Chicago with the Addition of Partner Kevin Desharnais

CHICAGO – August 9, 2016 – Troutman Sanders LLP is pleased to announce that Kevin Desharnais has joined the firm’s Environmental practice as a partner in the Chicago office. Prior to joining Troutman Sanders, Desharnais was a partner at Mayer Brown LLP.

For more than 20 years, Desharnais’ practice has covered a broad range of environmental regulatory and compliance issues, including air and water permitting, management of hazardous substances, remediation of contamination, enforcement response and environmental litigation. He also handles negotiation of environmental provisions in the course of corporate and real estate transactions, including mergers, stock purchases, securitizations, debt offerings and credit transactions, as well as environmental issues in renewable energy transactions. [Read more →]

August 9, 2016   Comments Off on Troutman Sanders Environmental Practice Expands to Chicago with the Addition of Partner Kevin Desharnais

U.S. EPA’s Pharmaceuticals Rule to be Kicked to Next Administration

According to the Healthcare Environmental Resource Center, “EPA will not be publishing a rule finalizing the Hazardous Waste Pharmaceuticals Rule in October of 2016 along with the Hazardous Waste Generator Improvements final rule and previously projected.”

Pharmacy retailers have anxiously awaited the final Management Standards for Hazardous Waste Pharmaceuticals rule (80 Fed. Reg. 50,014), after the U.S. Environmental Protection Agency (U.S. EPA) published the proposed rule on September 25, 2015 in the Federal Register, but it appears the wait will continue.  Pharmacy retailers have hoped that the final rule would, among other things, provide a means of avoiding Large Quantity Generator (LQG) status and the onerous requirements, which are ill-suited for retailers.  However, based on discussions with U.S. EPA sources, we now understand that the Pharmaceuticals rule is not likely to be finalized before the change in presidential administration.  Given the change in administration, and depending on the election results, we may not see a final Pharmaceuticals rule for years. [Read more →]

July 29, 2016   Comments Off on U.S. EPA’s Pharmaceuticals Rule to be Kicked to Next Administration

DOJ Shines New Light on Environmental Criminal Prosecutions

Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws.

A section within the ENRD, the Environmental Crimes Section (“ECS”) houses a unit of 43 specialized attorneys tasked with prosecuting individuals and corporations that have violated environmental criminal statutes. Cruden’s remarks hint at a rise of ECS activity, but ECS section chief Deborah Harris indicated that the number of ECS pollution prosecutions, which normally account for 75% of ECS’s docket, has been shrinking. However, according to Harris, ECS wildlife prosecutions are increasing, and ECS has begun to focus on new enforcement areas, including worker safety. Importantly, despite shifting priorities, ECS has maintained a stable number of attorneys to handle the various prosecutions, underscoring the important role ECS will play in the future. [Read more →]

July 13, 2016   Comments Off on DOJ Shines New Light on Environmental Criminal Prosecutions

EPA Increases Statutory Civil Penalty Levels

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.

Accordingly, EPA has just released an interim final rule implementing the initial catch-up adjustments based on the percentage increase in the October 2015 Consumer Price Index for all Urban Consumers (CPI-U) as compared to the last time EPA adjusted its penalties (2013). Since some of the penalty levels have not been updated in a long time, some of the increases are substantial, although the new law caps the initial catch-up increases at 150 percent of the level in effect on November 2, 2015.  For example, the rule increases the Clean Air Act penalty amounts for civil judicial enforcement, which were originally set at $25,000 per violation per day and had previously been increased to $37,500 in 2009, to a new maximum level of $93,750—the maximum increase of 150% that is allowed under the rule. In accordance with the Act, EPA has published the changes as an “interim final rule,” without opportunity for public review and comment.

The interim final rule can be accessed here: EPA Civil Monetary Penalty Inflation Adjustment Rule.  For more information, contact Mack McGuffey or Buck Dixon.

July 1, 2016   Comments Off on EPA Increases Statutory Civil Penalty Levels

EPA Extends Comment Period On RCRA Corrosive Dust Decision

In 2011, Public Employees for Environmental Responsibility (PEER) petitioned the Environmental Protection Agency (EPA) for stricter federal hazardous waste law listing criteria for corrosive dust. Specifically, PEER asked EPA to revise the regulatory value for defining waste as corrosive, moving it from a pH of 12.5 to 11.5. PEER argues that the 11.5 mark is a standard successfully employed by many other international and domestic regulatory programs. PEER also requested a broadening of the scope of the Resource Conservation and Recovery Act (RCRA) corrosivity definition to include nonaqueous wastes, as well as aqueous wastes. PEER believes that the current standard is far less stringent than the presumed safe levels set for alkaline corrosives by other international bodies.  As evidence, PEER cited injuries suffered by first respondents in the aftermath of the 2001 World Trade Center (WTC) attacks.

On April 11th, the EPA issued a tentative denial of PEER’s request, countering that WTC injuries could not be attributed to any one property of the dust and that none of the research on the exposed population identified the type of tissue damage that could be linked to corrosivity. The EPA has opened solicitation for public comments before a final decision is made; the EPA also asked for additional data on possible impacts from the current corrosivity rule. In comments submitted to the EPA on May 16th, PEER requested a 210-day extension of the 60-day comment period, citing several justifications. Among them was the concern that the original deadline would make it difficult for potential commentators to effectively read and comment on the large volume of related documents in the EPA’s docket.  [Read more →]

June 21, 2016   Comments Off on EPA Extends Comment Period On RCRA Corrosive Dust Decision

EPA Seeks to Rid Title V Program of Affirmative Defense for Emergencies

On Tuesday, June 14, 2016, EPA published a proposed rule in the Federal Register that would remove from Title V regulations the affirmative defense for noncompliance with certain emission limitations due to “emergency” circumstances. EPA now deems the affirmative defense to be inconsistent with recent federal case law and the Clean Air Act’s enforcement structure. It is the latest move by EPA in a series of actions intended to rid the Clean Air Act of all affirmative defense provisions, even those original designed to address unavoidable events. The proposed rule can be accessed here: Removal of Title V Emergency Affirmative Defense Provisions.

June 14, 2016   Comments Off on EPA Seeks to Rid Title V Program of Affirmative Defense for Emergencies

The White House Receives EPA’s Final Hazardous Waste Generator Improvements Rule

EPA sent its final hazardous waste generator improvements rule to the White House Office of Management and Budget (OMB) for review.  EPA released a proposed version of the rule on August 31, 2015.  The proposal includes several changes to EPA’s current hazardous waste regulations. According to EPA, the proposed rule is intended to improve compliance, address regulatory gaps, give hazardous waste generators greater flexibility, and make the regulations more user-friendly. Industry groups representing the retail, paper, chemical, and other sectors filed comments on the proposed rule. OMB review typically takes 90 days.  Therefore, a final version of the rule could be released this fall.  For more detail on the proposed rule, click here.

For more information please contact Greg Blount or Andrea Rimer.

June 14, 2016   Comments Off on The White House Receives EPA’s Final Hazardous Waste Generator Improvements Rule

EPA Releases Final Environmental Justice Technical Guidance

EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” On June 7, 2016, EPA released its final version of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance). EPA previously released a draft version of this guidance on May 9, 2013.  The new guidance complements EPA’s Guidance on Considering Environmental Justice During the Development of Regulatory Actions, issued in May 2015, which provides direction on when EJ should be considered during the development of a “regulatory action,” and begins to address the issue of how to do so in an analytical fashion. A “regulatory action” is “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”

The guidance is intended to be used by EPA analysts as a detailed framework for analyzing potential EJ concerns for regulatory actions. The guidance provides detailed descriptions of various factors that indicate EJ concerns. Moreover, the guidance offers complex quantitative and qualitative assessment methods for investigating EJ.  EPA states that it plans to further update this guidance as science, data, and analytic methods improve.  EPA released the new EJ Technical Guidance on the heels of its proposed Environmental Justice 2020 Action Agenda (the “Proposed EJ 2020”) released on May 23, 2016. The Proposed EJ 2020 addresses the Agency’s strategy for environmental justice for 2016-2020. Comments are due on the Proposed EJ 2020 on July 7, 2016. In recent years, EPA has developed a strategic and sophisticated approach for advancing its EJ goals. Industry stakeholders have engaged EPA on its EJ strategy and are becoming more familiar with the Agency’s overall EJ agenda.

A copy of the EJ Technical Guidance is available EJ Technical Guidance here. And, a copy of the Proposed EJ 2020 is available here.

For more information, please contact E. Fitzgerald Veira or Hahnah Williams.

June 13, 2016   Comments Off on EPA Releases Final Environmental Justice Technical Guidance

Toxic Tort Vapor Intrusion Case Highlights Difficulties In Class Action Certification

A recent Eight Circuit decision highlights the difficulties in obtaining class action status in toxic tort actions. In Ebert, et al. v. General Mills, Inc., Class Action Plaintiffs alleged that General Mills released TCE onto the ground and into the environment causing the TCE in soil vapors to threaten homes and businesses in the surrounding neighborhood.  The Plaintiffs sought class certification on two issues: (1) whether General Mills is liable to home owners of the properties in the defined neighborhood and (2) whether injunctive relief warranted comprehensive remediation.  The U.S. District Court of Minnesota granted the class certification by bifurcating the Plaintiffs claims and reasoning that individual issues do not predominate over the common issues in the claims for which class certification was sought.  In an opinion issued on May 20, 2016, the U.S. Court of Appeals for the 8th Circuit held that the district court’s grant of class certification was an abuse of discretion.  The Court based its opinion on Federal Rule of Civil Procedure 23(b)(3), which requires that issues common to the class must predominate over individual issues.  The Court reasoned that determining General Mill’s liability will require examining whether vapor contamination, if any, threatens or exists on each individual property as a result of General Mills actions.  With this property-by-property analysis, “individual proof necessary to resolve the issues abounds” and the class action failed “for lack of cohesion.”  The case was remanded to the district court with directions to revisit the issues in conformity with the Court’s holding.  This decision highlights the difficulties in obtaining class action status in toxic tort actions. Alleged damages to property and health effects are highly individualized inquiries unlikely to be certified as class actions.

For more information, please contact Kate Warihay.

June 10, 2016   Comments Off on Toxic Tort Vapor Intrusion Case Highlights Difficulties In Class Action Certification