Authors
Mitchell Guc, Associate, Pepper Hamilton
Todd Fracassi, Partner, Pepper Hamilton
Randy Brogdon, Partner, Troutman Sanders

On May 13, nine state attorneys general filed a complaint against the U.S. Environmental Protection Agency (EPA) challenging EPA’s COVID-19 enforcement discretion policy, which we discussed in previous articles here and here. The plaintiff states

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by

On April 22, 2020, EPA published an interim final rule providing relief to sources that are subject to the quality assurance testing and reporting under 40 CFR Part 75. The initial summary of the rule indicates the policy applies to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s

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

Authors
Todd C. Fracassi, Partner, Pepper Hamilton
Mitchell L. Guc, Associate, Pepper Hamilton
Andrea L. Rimer, Partner, Troutman Sanders
Randy E. Brogdon, Partner, Troutman Sanders

On April 10, the U.S. Environmental Protection Agency’s (EPA’s) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) jointly released a memorandum to all EPA Regional Administrators regarding the suspension, reduction or continuation of on-site cleanup activity in the wake of the COVID-19 pandemic. The memorandum supplements earlier guidance released on March 19 outlining OLEM’s management considerations and posture in response to COVID-19, which is included as an attachment to the April 10 guidance.


Continue Reading EPA Issues Guidance for On-Site Cleanup Activity Suspension, Reduction or Continuation in Response to COVID-19

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

Continue Reading EPA Issues Enforcement Discretion Guidance to Address Compliance in Wake of COVID-19

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