On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.
Continue Reading Coal Plant Demolition Triggers Illinois Air Quality Lawsuit

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.

Continue Reading State and Environmental Group Opposition to EPA’s COVID-19 Enforcement Discretion Policy Intensifies

Authors

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

The U.S. Department of Justice (DOJ) is quietly taking steps to provide financial relief during the COVID-19 pandemic. In an April 14 model letter, DOJ offered to temporarily suspend its collection of stipulated penalty payments owed under some consent decrees through at least May 31, 2020. Notably, the letter also stated that DOJ will advise as to whether the suspension will be extended beyond May 31, 2020 and that if a party simply does nothing in response to the notice, DOJ will not seek collection of the debt until after May 2020. The letter is signed by Joseph Davis, Chief of the Case Management Unit of DOJ’s Environment & Natural Resources Division (ENRD) Environmental Enforcement Section.

Continue Reading Department of Justice Offers Reprieve from Stipulated Penalty Payments Through at Least May 31, 2020, in Response to COVID-19

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility.  For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit.  But on March 25, 2020, EPA proposed new guidance to clarify that, according regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself.

Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

Continue Reading Environmental Compliance in the Wake of the Coronavirus

The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

Continue Reading New Reporting Rule for Accidental Releases

New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).

Continue Reading Toxic Release Inventory Expanded to Include PFAS, with 160 New Reportable Chemicals and Counting

On January 27, EPA published a preliminary list of manufacturers that are potentially subject to a fee obligation under the Toxic Substances Control Act (“TSCA”). This is a follow-up notice to EPA’s designation of 20 additional substances as High Priority Substances in December, for which the agency will now go through a risk evaluation, including:

Continue Reading EPA Publishes Preliminary List of Manufacturers Subject to TSCA Risk Evaluation Fees

EPA’s first major action under its February 2019 comprehensive Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (previously discussed in detail here) is out. On September 25, EPA sent a request for public input on whether EPA should add “certain PFAS chemicals” to the Toxics Release Inventory (TRI) to the Office of Management and Budget (OMB). EPA issues advance notices of proposed rulemaking to get a sense of public reaction before it initiates an important regulatory change, typically before it has conducted significant research or expended agency resources.
Continue Reading EPA Seeks Public Input on Adding PFAS to the Toxic Release Inventory

Troutman Sanders attorneys Randy Brogdon and Rich Pepper  authored an article published in Law360 titled “Workplace Safety’s Little-Known Hammer: The Clean Air Act” which examines the workplace safety requirements of the Clean Air Act and the potential consequences of exclusively relying on similar, but not identical, requirements under the Occupational Safety and Health Act. They