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

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers

On January 13 and 15, 2020, EPA and the U.S. Department of Labor (DOL), 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 January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.

The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (FERC) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.
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On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.

Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit.
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