New York City and the Federal Emergency Management Agency (FEMA) announced on October 17, 2016 that they have reached an agreement to revise the City’s flood maps. The move resolves the City’s appeal of preliminary Flood Insurance Rate Maps (FIRMs), which affect thousands of businesses and households. The City’s appeal, filed on June 26, 2015, argued that there were errors in FEMA’s storm surge and offshore wave models that resulted in Base Flood Elevations (BFEs) that were overstated by more than two feet in some areas, which caused many thousands of structures to be incorrectly designated on FIRMs.
Property owners who have been impacted by whether wetlands or waters are under the jurisdiction of the United States Army Corps of Engineers have received long-awaited guidance from the United States Supreme Court. Pursuant to a recent Court ruling, property owners will now be able to challenge the Army Corps’ jurisdictional determination. This is expected to save property owners the additional time and money otherwise required in obtaining a permit before initiating such a challenge.
In an effort to curb lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease among workers exposed to crystalline silica, the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a final rule that strengthens protections for workers exposed to respirable silica dust. This rule provides two standards, one for construction and one for general industry/maritime. The standards take effect on June 23, 2016; however, employers subject to the construction standard have until June 23, 2017 to comply with the majority of the new requirements, and employers subject to the general industry/maritime standard have until June 23, 2018 to comply.
The New Jersey Department of Environmental Protection (NJDEP) recently reinforced its position on the May 2016 deadline to complete the remedial investigation of cleanup sites for cases open since 1999 or earlier. In anticipation of this deadline, the NJDEP also published earlier guidance documents addressing the investigation of the potential impact of contaminated sites on surface waters.(1)
A recent decision from the 8th Circuit Court of Appeals denied a citizens’ group claim that a municipality’s use of road salt during winter weather events constitutes solid waste disposal under the Resource Conservation and Recovery Act (“RCRA”).
The court held that the road salt (sodium chloride and sodium ferrocyanide) did not meet the statutory definition of “solid waste” under RCRA. Specifically, road salt was deemed not to be solid waste because the salt was applied for its intended purpose and was not considered a discarded waste under RCRA.
Contrary to popular belief, asbestos continues to be a material used in the manufacture of various products across a number of industries, including friction products, cement, gaskets and roofing materials, to name a few. While there is no law that completely bans the use of asbestos in the United States, both the House and Senate are considering new legislation that would amend the Toxic Substances Control Act ("TSCA"), which could permit the Environmental Protection Agency ("EPA") to completely ban the use of asbestos and asbestos-containing products.
On February 9, 2016, the United States Supreme Court stayed the application of the U.S. Environmental Protection Agency (“EPA”) Clean Power Plan (“Plan”), pending the review by the United States Court of Appeals for the D.C. Circuit and the disposition of a writ of certiorari if one is ultimately sought. The Clean Power Plan, finalized on August 3, 2015, establishes state-by-state targets for carbon emissions reductions and offers a framework under which states may meet those targets. The Plan purports to reduce national electricity sector emissions by an estimated 32 percent below 2005 levels by 2030.
On July 22, 2015, OSHA changed its interpretation of what qualifies as a “retail facility” under OSHA’s Process Safety Management (PSM) standard retail exemption. OSHA estimates the reinterpretation of the exemption could potentially cover an estimated 5,000 additional facilities nationwide. The previous exemption, which had been in place for 20 years, defined a retail facility as one that receives 50% of its income from direct sales of PSM Appendix A chemicals to the end user. Under the new exemption, retail facilities are now defined as those with a North American Industry Classification System (NAICS) code within Sectors 44-45, Retail Trade. The new guidelines go into effect immediately.
It is recommended that you check your property or property of interest in the updated EPA and NJDEP online environmental databases and periodically verify your property’s information for accuracy and to ensure no outstanding issues.
USEPA has upgraded its “Enforcement Compliance History Online” (“ECHO”) website to include more data sources and improved search functions. ECHO is free and includes air, water, waste emissions, permits, inspections and enforcement data and information. ECHO should be part of any environmental audit.