On May 2, 2017, the United States Environmental Protection Agency (“EPA”) sent to the White House Office of Management and Budget (“OMB”) a proposed rule that would repeal the 2015 Clean Water Rule, also known as the Waters of the United States Rule (“WOTUS Rule”). The WOTUS Rule currently defines the jurisdictional limits of the Clean Water Act by clarifying which bodies of water the Act regulates. Accordingly, the repeal impacts developers, landowners, farmers, golf courses and anyone else who dredges, fills or discharges pollutants into regulated bodies of water, requiring a permit for such activity.
President Donald Trump has proposed budget cuts that could slow or even stop work at CERCLA Superfund sites throughout the country. Waste officials estimate that the proposed cuts, which would cut the Superfund program’s budget by about 30%, would eliminate an average of four full-time employees from each state and would stop work on nine Superfund sites per state.
On April 3, 2017, the Environmental Protection Agency (EPA) published a proposed rule to further delay the effective date of the Risk Management Program (RMP) rule amendments from June 19, 2017 to February 19, 2019. During the delay, the EPA will likely consider several petitions for reconsideration of the RMP rule amendments and take further regulatory action.
A recent court decision could mean higher remediation costs for parties liable under the New Jersey Spill Compensation and Control Act (“Spill Act”) for discharges that occurred prior to 1977. This week, the New Jersey Supreme Court held that the State of New Jersey cannot be held liable for claims under the Spill Act arising from discharges prior to the adoption of the Spill Act in 1977. The Court further clarified that Spill Act plaintiffs need not satisfy the notice-of-claim requirements under the Torts Claims Act and that the Spill Act does not strip the State of its immunity for discretionary governmental activities such as the issuance of permits.
Oklahoma Attorney General Scott Pruitt, nominee for EPA Administrator, indicated that if he is confirmed, he would make Superfund "a priority." Funding for the Superfund Program has decreased over the years, from $2 billion in 1999 to $1.1 billion in 2016. When questioned during recent Senate committee hearings, Pruitt stated "[i]f confirmed, I would expect to prioritize the cleanup of contaminated land." He also indicated that he would be more deferential to state governments, which has raised some concerns over whether states would receive necessary federal financial support to face cleanup challenges at Superfund Sites. Connell Foley will continue to monitor developments at the EPA that may impact clients and their projects.
The Trump administration is freezing 30 Environmental Protection Agency (“EPA”) rules until March 21, 2017, including standards concerning renewable fuel, formaldehyde emissions, oil and hazardous substances pollution, solid waste landfill permitting, pesticides, radon and air quality. The freeze will provide the new administration time to review new and pending regulations, some of which were implemented by the Obama administration.
On February 17, 2017, the Ninth Circuit Court of Appeals will hear oral argument on whether the Resource Conservation and Recovery Act (“RCRA”), which regulates solid waste, also regulates chemical seepage from chemically treated wooden utility poles. The Ecological Rights Foundation filed a citizen suit against Pacific Gas and Electric alleging that seepage from treated poles is “solid waste” under RCRA and should be regulated. The Foundation has argued that dioxins and other chemicals leak into water bodies from chemically treated wood stored at PG&E facilities. The Department of Justice has filed an amicus brief supporting the Foundation, and moved on January 19 to participate in oral argument. A key issue will be
Newark, New Jersey is currently home to the world’s largest indoor vertical farm developed by AeroFarms. This vertical farm comes at a cost of roughly $39 million and consists of a 69,000-square-foot facility (47,000 square feet of which is used for vertical farming), which also includes office and lab space. The New Jersey Economic Development Authority awarded the project a $2.2 million grant under the Economic Redevelopment and Growth program and $6.5 million tax credit through the Grow New Jersey program. AeroFarms broke ground on the project in the summer of 2015 and the farm opened in September 2016. At full capacity, AeroFarms aims to generate 2 million pounds of fresh produce each year at the Newark facility, which is a yield of 7
On October 24, 2016 the U.S. Senate Environment and Public Works Committee released a Government Accountability Office (“GAO”) report on the national consistency of the Environmental Protection Agency (“EPA”) in managing two tiers of Superfund sediment sites (i.e., water bodies containing contaminated sediments) (available at http://www.gao.gov/assets/680/679957.pdf). The report, requested by the Committee in May 2015, concluded that although EPA should clarify certain documentation requirements, EPA generally manages these sediment sites consistently.
The EPA has established an updated alternative particulate matter standard for new oil-fired boilers that combust low-sulfur liquid fuel. EPA also defined startup and shutdown requirements for new and existing area source boilers. The area source boiler standards apply to roughly 183,000 boilers in the U.S.; however, only about 600 coal-burning units are subject to emissions limits. EPA will require further performance testing for particulate matter of area source boilers every five years for certain boilers based on their initial compliance testing (rather than eliminate further performance testing for such boilers).