March 28, 2014
On March 25, 2014, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (the “Army Corps”) proposed new regulations to clarify the scope of the agencies’ jurisdiction over wetlands, intermittent streams, and other “navigable waters” under the Clean Water Act (“CWA”), an issue addressed but not conclusively resolved in a 2006 Supreme Court decision.
The CWA requires a permit for the point source discharge of any pollutant, or for the disposal of any dredged or fill material, into “navigable waters,” which are defined in the statute as “waters of the United States.” The CWA does not provide any further definition of that term, and prior EPA and Army Corps regulations interpreted “waters of the United States” broadly, covering not only “navigable in fact” waterways but also adjacent tributaries and wetlands, intermittent streams, mudflats, and more.
The Supreme Court addressed the scope of CWA jurisdiction in Rapanos v. United States, a 5-4 decision that is most notable for Justice Kennedy’s concurring opinion. In his concurrence, Justice Kennedy interpreted the CWA to cover wetlands with a “significant nexus to waters that are or were navigable or could reasonably be so made.” In the absence of revised regulations, however, this “significant nexus” test had to be applied on a case-by-case basis, a burdensome exercise that resulted in considerable uncertainty about the reach of the CWA.
The recently proposed regulations aim to reduce this uncertainty by adding a new definition of “navigable waters” and clarifying the CWA’s application to broader categories of wetlands and water bodies. Under the EPA/Army Corps proposal, all tributaries to navigable waters – including intermittent or seasonal streams – would be subject to CWA jurisdiction, along with their adjacent wetlands. EPA estimates that approximately 60 percent of all U.S. stream miles only flow seasonally or after rain, and that most of those waters would be regulated under the proposed rule.
Other wetlands and water bodies not expressly covered by the new definitions would still be subject to a site-specific “significant nexus” analysis, although EPA is soliciting comment on whether to make categorical nexus determinations for “similarly situated waters in certain geographic areas.” In addition to the proposed rule, EPA and the Army Corps issued a final interpretative rule affirming that 53 agricultural conservation practices listed by the United States Department of Agriculture will remain exempt from Army Corps permitting requirements under CWA Section 404.
For more information on the CWA and wetlands permitting, contact Mark Chertok.
January 17, 2014
Unlike in 2013, in his 2014 State of the State speech Governor Andrew Cuomo did not explicitly mention solar power. However, the 2014 State of the State Report, published in conjunction with the speech, indicates that solar power will remain a policy priority in the coming years.
The report reiterates Governor Cuomo’s goal of “[e]ncouraging New York State to become a national leader in solar energy.” New York’s primary public policy program to promote solar is the NY-SUN program, launched in 2012 and administered by the New York State Energy Research and Development Authority (NYSERDA). SPR attorney Scott Furman recently negotiated the design and installation of one of the largest NY-SUN projects in New York City – a 1.059 MW project on the roof of the Manhattan Beer Distributors facility in the Bronx. The project is slated for completion in 2014.
The report also states that in 2014, the Cuomo Administration will, under the auspices of NY-SUN, launch a new program called “Community Solar NY,” which will seek to expand access to solar power in communities that are currently underserved.
A flagship initiative for Community Solar NY will be the “K-Solar” program, which will provide financial incentives and technical assistance to K-12 school administrators interested in installing solar power systems on school property, such as rooftops. As the report notes, “[o]f the nearly 5,000 public schools in the state, many are prime candidates for solar energy but have not been able to navigate the bureaucratic channels to finance it through potential energy savings.”
In addition, the report notes that the Cuomo administration will aim to use a successful solar project at a school as a jumping-off point to “solarize” the surrounding neighborhood. For example, to incentivize schools to reach out to the communities in which they are located, “NYSERDA [could provide] a financial reward to the school for every surrounding home that installs solar as well.”
Finally, in a recent filing with the Public Service Commission, NYSERDA requested an additional $864 million for solar energy incentives extending through 2023, which would bring total NY-SUN program funding to approximately $1 billion.
For more information on solar in New York, please contact Scott Furman or Devin McDougall.
January 3, 2014
As anticipated, EPA finalized a rule on Monday adopting the revised ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” as a standard by which parties may comply with the “All Appropriate Inquiries” Rule, 40 CFR Part 312. ASTM released the revised E1527-13 standard on November 6, 2013. Curiously, the newly revised EPA rule does not delete reference to the previous ASTM standard, E1527-05. In the Federal Register notice finalizing the rule, EPA indicated that it intends to propose, in the near future, an amendment to 40 CFR Part 312 removing reference to the E1527-05 standard. In its response to comments received on the new rule, EPA noted that it “…agrees with commenters that the revised ASTM E1527-13 standard includes improvements to the previous standard and its use will result in greater clarity for prospective purchases with regard to potential contamination at a property. Therefore, EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.”
For more information on the ASTM standard, AAI, Phase I reports, or environmental due diligence, please contact Christine Leas
December 19, 2013
2013 saw a dramatic increase in the Federal Trade Commission’s (“FTC’s”) enforcement of truth-in-advertising laws for environmental marketing. Deceptive environmental marketing practices, sometimes referred to as “greenwashing,” were the target of 14 FTC enforcement actions this year, up from 5 in 2012, 3 in 2011, and 2 in 2010. This year’s actions have included some of the largest American corporations, including Amazon, Sherwin-Williams, Macy’s, Sears, Roebuck and Co., Farberware, and K-Mart.
This increase in enforcement activity follows major revisions in 2012 to the FTC’s “Green Guides,” guidance documents which provide information concerning the FTC’s standards for lawful environmental marketing claims.
The New York State Department of Environmental Conservation has incorporated part of the Green Guides into its own regulations at 6 NYCRR § 368.1. Under the regulations, advertising which uses the terms “recycled,” “recyclable,” or “reusable” must conform to the standards for environmental marketing in the Green Guides.
Notably, the Green Guides contain specific guidance on certain types of marketing claims. Companies advertising a product or service with claims of the following types should carefully review the Guides:
- Carbon offsets
- Certifications and seals of approval
- Compostable claims
- Degradable claims
- Free-of claims
- Non-toxic claims
- Ozone-safe and ozone-friendly claims
- Recyclable claims
- Recycled content claims
- Refillable claims
- Renewable energy claims
- Renewable materials claims
- Source reduction claims
For more information about the FTC’s truth-in-advertising requirements for environmental marketing, contact Elizabeth Knauer or Devin McDougall.
December 13, 2013
On December 10, 2013, the U.S. Supreme Court heard oral argument on two challenges to the Environmental Protection Agency’s (“EPA’s”) Cross-State Air Pollution Rule, commonly known as the “Transport Rule” or “CSAPR.”
Under its so-called “good neighbor” provision, Section 110 of the Clean Air Act (“CAA”) requires states to prohibit the emission within their borders of air pollutants that will “contribute significantly” to downwind states’ inability to attain or maintain compliance with national air quality standards. The Transport Rule would implement the good neighbor provision in twenty-eight eastern states by requiring power plants in those states to reduce their emissions of pollutants that cause ground-level ozone and particulate matter pollution in downwind states.
The challengers to the Transport Rule argue, first, that EPA impermissibly issued the rule without first allowing the states the opportunity to achieve compliance with the good neighbor provision without EPA intervention and, second, that the rule impermissibly uses cost-effectiveness as a consideration in determining upwind states’ emissions-control obligations.
Tuesday’s argument was the latest episode of a saga of litigation that has hindered EPA’s efforts to regulate the interstate transport of ozone and particulate matter pollution. In 2005, EPA issued the Clean Air Interstate Rule (“CAIR”) to address the same issue. The D.C. Circuit remanded that rule, in part because it deemed CAIR insufficiently protective of downwind states. After EPA issued the Transport Rule in 2011, the D.C. Circuit vacated the new rule. This time, the court reasoned in part that the new rule could impose overly stringent restrictions on some upwind states.
Litigation arising from EPA’s implementation of the good neighbor provision reflects how regulating the interstate transport of air pollution pits the economic interests of upwind states against the environmental and public health concerns of downwind states. In the instant case, several upwind states from the South and Midwest have filed a brief urging the Supreme Court to affirm the D.C. Circuit’s latest decision, whereas downwind states from the Northeast have filed a brief in support of EPA.
Adding another layer to that dispute, on Monday eight Northeastern states petitioned EPA to add nine upwind states to the Ozone Transport Region (“OTR”) established by Section 184 of the CAA. Being designated as part of the OTR may subject a state to heightened emissions control requirements for ozone-causing pollutants, even if that state is in attainment of EPA’s ozone air quality standards. In support of their petition, the Northeastern states submitted a technical support document that relies heavily on EPA’s analysis of cross-state transport of pollution in the Transport Rule.
Given the stakes of this cross-regional dispute, we can expect that it will continue, whether the Supreme Court sustains the Transport Rule or strikes it down.
For more information on the Transport Rule litigation and related Clean Air Act issues, please contact Jeffrey Gracer, Jonathan Kalmuss-Katz, or Ed Roggenkamp.
 42 U.S.C. § 7410(a)(2)(E).
 42 U.S.C. § 5711c(a).
 42 U.S.C. § 5711c(b)–(c).
November 27, 2013
Last week, the Global Alliance on Health and Pollution (“GAHP”) released a report examining laws governing the remediation of contaminated properties in seven Latin America countries, as well as the United States, and identifying best practices. The report, entitled “Regulatory Best Practices for Remediation of Legacy Toxic Contamination,” was produced by the Cyrus R. Vance Center for International Justice. The Blacksmith Institute, a nonprofit focused on global toxic pollution issues which serves as the secretariat for the GAHP, also assisted in the production of the report.
SPR attorneys Jeff Gracer and Devin McDougall served as United States Coordinating Counsel for the report.
The six recommendations identified in the report are:
1. Create clear numeric guidelines for establishing whether a site is contaminated. Although contaminated sites are often defined as sites where pollution is present at levels that may present a threat to human health and the environment, it is useful to enact regulations that specifically define what those levels are, so that sites can be readily identified as candidates for further investigation and remediation.
2. Use commercial events to identify contaminated sites. Evaluation of historic contamination can be required when project proponents are applying for permits, and when industrial facilities are being bought and sold or decommissioned. These triggers will result in the identification of contaminated sites at a time when funding for investigation and remediation is most likely to be available.
3. Create incentives for voluntary remediation. Laws and regulations should make it easy for private parties to come forward on a voluntary basis to address legacy contamination. These incentives can include resolution of existing liability for site owners, liability exemptions for prospective purchasers, tax exemptions and tax credits, remediation funding grants, and other governmental incentives.
4. Create a clear and efficient remediation process. One of the most significant barriers to environmental cleanup is the uncertainty surrounding applicable cleanup standards, the complexity of the process, and the involvement of multiple governmental agencies with overlapping jurisdiction. Experience has shown that published cleanup standards, a simple process for engagement with the government, and clear delineations of which agency has jurisdiction over a particular cleanup will encourage increased private sector participation.
5. Provide meaningful opportunities for public review and comment. Environmental remediation regulations and practices often benefit from input from members of the business community who will be called upon to effectuate cleanups and also by members of communities who live in close proximity to contaminated sites. Site remediation plans may also be more pragmatic and tailored to actual risk if they are subject to prior public review and comment.
6. Develop effective mechanisms to address abandoned sites. Sites that are not subject to commercial activity or voluntary remediation can be the most troublesome from a governmental perspective. Governments should consider creating a registry of such sites so that they can be identified for investigation and evaluated as candidates for future remediation. Sites should be prioritized for clean-up based on a clear methodology established by the government to address those that pose the greatest risk first. Government funding can be made available to remediate such sites through a combination of lawsuits against former owners and operators or, if no responsible party can be reached, through other mechanism for funding in appropriate cases. Future “orphan” sites can be avoided by requiring environmentally sensitive operations to purchase environmental insurance policies.
For more information about the development of remediation policies in Latin America, please contact Jeff Gracer.
November 8, 2013
On November 6, 2013, ASTM released its updated E1527-13 Standard for Environmental Site Assessments: Phase I Environmental Site Assessment Process, a standard that EPA has identified in a proposed rule as a means of satisfying the definition of “all appropriate inquiries” (AAI) under CERCLA, as needed to establish certain defenses to liability. According to ASTM, the standard was revised to clarify language where there was previously inconsistency in interpretation of the prior version of the standard (ASTM E1527-05) and to strengthen Phase I reports prepared by environmental professionals. Major changes from the previous version of the standard, released in 2005, include:
- Changes in the definition of Recognized Environmental Condition (REC): The new standard includes a simplified definition of REC, a revised definition of historic recognized environmental condition (HREC) and a new term, controlled recognized environmental condition (CREC)
- Additional requirements for review of public agency records, including the requirement that additional information sources (such as Sanborn maps and tax files) be reviewed for properties with historical industrial or manufacturing uses
- Vapor intrusion: the new standard adds a definition of “migrate/migration” which includes the movement of vapor in the subsurface, and clarifies that vapor migration/intrusion does not fall under the rubric of indoor air quality (which, like asbestos and radon, is outside the scope of a Phase I assessment).
The new standard does not resolve certain state- and locality- specific questions raised by record review requirements, including whether certain types of environmental records are considered “readily ascertainable” and thus part of a Phase I review. For instance, in New Jersey and Connecticut, records related to the environmental remediation of a property were previously publicly available but are now held by private consultants (“licensed site remediation professionals” (LSRPs) in New Jersey and “licensed environmental professionals” (LEPs) in Connecticut).
In contrast, the New York State Department of Environmental Conservation announced this week that it would post online its information related to 1,950 remedial sites with non-registry “P,” “PR,” and “N” designations, making it easier for New York environmental consultants conducting Phase I assessments to quickly access these records. (More information about those types of site designations can be found here.) Such state-to-state variations in agency record review highlight the importance of having AAI review conducted by an environmental professional with a detailed understanding of the local environmental regulatory regime for a given property.
The new E1527-13 standard is part of a continuum of evolving environmental due diligence practice. The new standard is an important milestone, but there are likely to be important changes and interpretations as the standard begins to be implemented in practice. For more information on the ASTM standard, AAI, Phase I reports or environmental due diligence, please contact Christine Leas.
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