On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.

Continue Reading

On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
Continue Reading

Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as

EPA recently released its FY 2018 Enforcement Results highlighting the environmental benefits reaped from its enforcement and compliance assurance actions over the past year.  This year’s report shows a marked shift away from previous years’ reports, which focused on the number of cases initiated and resolved and the amount of penalties imposed.  Overall enforcement numbers declined over previous years, with a continuing decline in inspections from 10,612 in FY 2018 compared to 11,941 in FY 2017, fewer cases initiated and concluded, and few penalties imposed from $69.4 million in FY 2018 compared to $1.67 billion in FY 2017.  To contextualize the penalty reduction, EPA notes that annual penalty totals are often skewed by one or two large cases in a particular year, such as the Volkswagen mobile source defeat device enforcement with $1.45 billion in penalties in FY 2017 and the $5.7 billion in penalties assessed in FY 2016 for the BP oil spill.  Despite other reductions, the report shows an increase in enforcement of environmental crimes for FY 2018.

Continue Reading

On February 6, 2018, David Ross, EPA’s Assistant Administrator for the Office of Water issued a new guidance memorandum updating the Agency’s Water Quality Trading Policy.  The new guidance strongly supports and promotes trading and flexibility and clarifies EPA’s previous guidance, stating, for example, that its 2003 Water Quality Trading Policy “may be too prescriptive to be widely effective and implementable.”  The guidance announces six “Market-Based Principles” designed to encourage and promote the development and implementation of market-based pollutant reduction programs.  The six principles include:

Continue Reading

On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index.
Continue Reading

EPA recently released the pre-publication version of its proposed National Compliance Initiatives for FY 2020-2023.  Notably, consistent with Susan Bodine’s August 21, 2018 Memorandum “Transition from National Enforcement Initiatives to National Compliance Initiatives,” EPA has extended the cycle from two years to four years, moved away from sector targeting, and updated its focus for FY 2020-2023 from enforcement to compliance initiatives.  EPA believes this adjusted focus will “better convey the overarching goal of increased compliance and the use of not only enforcement actions, but the full range of compliance assurance tools.”

Continue Reading

Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction.  Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite.  In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.

Continue Reading