Environmental

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On Dec. 11, 2018, EPA and the U.S. Army Corps of Engineers (the Agencies) released a proposal to revise the regulatory definition of “waters of the United States” (WOTUS), as found in the federal Clean Water Act (CWA). The proposal represents another chapter in the long-running debate over the scope of federal authority. The CWA gives the Agencies broad authority to regulate WOTUS – but does not define that term. The Agencies have adopted numerous definitions…
Last week, the Attorney General and the Commissioner of the New Jersey Department of Environmental Protection held a press conference to announce the filing of eight new environmental enforcement actions. Targeted sites include Camden’s Puchack Wellfield Superfund Site, the Fillit Corp. site in Palmyra, 323 North Olden Ave. in Trenton, the Novick Chemical site in Newark, Tirpok Cleaners in Flemington, and gas stations in Newark, Camden and Phillipsburg. This is the State’s second round of…
By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen Seyfarth Synopsis:  The U.S. Supreme Court agreed this week to reconsider a key precedent of administrative law that tells judges to defer to an agency’s interpretation of its own ambiguous regulation, taking up a challenge to the so-called “Auer” or “Seminole Rock” deference.  The Auer deference has been criticized by conservative justices on the court. Kisor v. Sectretary of Veterans Affairs,…
On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.”  The practical…
Effective October 1, 2018, the Occupational Safety and Health Administration (OSHA) updated its National Emphasis Program (NEP) on Trenching and Excavation, with the intent of describing “policies and procedures . . . to identify and to reduce hazards which are causing or likely to cause serious injuries and fatalities during trenching and excavation operations.”  The updated NEP replaces the original 1985 CPL 02-00-069 – Special Emphasis: Trenching and Excavation and, among other things, establishes a requirement…
Today U.S. EPA finalized new hazardous waste regulations in its final Management Standards for Hazardous Waste Pharmaceuticals rule.  In brief, the rule creates a new Subpart P to 40 Code of Federal Regulations Part 266, which is specific to hazardous waste pharmaceuticals.  The rule applies to all “healthcare facilities” (such as hospitals and retail pharmacies) and “reverse distributors.”   The rule requires that all healthcare facilities and reverse distributors manage hazardous waste pharmaceuticals in accordance with…
California Air Resources Board lifts freeze on Low Carbon Fuel Standard. By Joshua T. Bledsoe and Kimberly D. Farbota On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel…
California Air Resources Board lifts freeze on Low Carbon Fuel Standard. By Joshua T. Bledsoe and Kimberly D. Farbota On December 7, 2018, the California Air Resources Board (CARB) issued Regulatory Guidance Document 18-02 which lifts the freeze on Low Carbon Fuel Standard (LCFS) diesel and diesel substitute targets previously enacted by CARB in 2017 in connection with the POET I case. The Guidance becomes effective January 1, 2019 at which point the applicable diesel…
Recent caselaw demonstrates that regulators are prepared to prosecute landlords as a direct result of their tenants’ unlawful waste operations. Landlords should consider this possibility when negotiating with prospective tenants and put in place reasonable safeguards to protect themselves. However, victims of fly-tipping may potentially face a similar risk of prosecution against which such safeguards will not be available.…