A recent decision out of the Southern District of Indiana joins a small number of decisions that have considered what is required for a buyer to satisfy all appropriate inquiries and qualify as a bona fide prospective purchaser (“BFPP”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” also known as “Superfund”). The case, Van Duprin LLC v. Moran Elec. Serv., No. 16-cv-01942 (S.D. Ind. March 30, 2020), highlights the fact that even though…
On April 15, the U.S. District Court for the District of Montana held that the Army Corps of Engineers failed to comply with the Endangered Species Act consequently must reconsider its Nationwide Permit (NWP) 12, which authorizes discharges under Section 404 of the Clean Water Act associated with the construction, maintenance or repair of pipelines, electrical lines, cable lines, and other utilities. The case, Northern Plains Resource Council v. U.S. Army Corps of Engineers, No.…
The issue of enforcement during the COVID-19 outbreak became contentious this week, when the Natural Resources Defense Council (NRDC) filed a lawsuit against U.S. EPA in the U.S. District Court for the Southern District of New York over the temporary regulatory enforcement policy that U.S. EPA issued three weeks ago on March 26. NRDC’s April 16th lawsuit follows its April 1st Petition to U.S. EPA asking the Agency to issue an emergency rule requiring that…
Companies around the country are continuing to assess the operating status of their businesses as the COVID-19 crisis evolves and changes on a daily basis. Amidst the flurry of state Shelter-in-Place (“SIP”) orders over the past week, industrial enterprises across a wide range of sectors – chemicals, energy, mining, agriculture, pharmaceuticals and steel – along with manufacturers providing equipment and supplies to these industries, have been positioning themselves as ”essential businesses” required to keep their…
Earlier this week, we provided guidance on the development of an “Environmental Action Plan” to address potential environmental regulatory and compliance challenges arising from the COVID-19 crisis. Our recommendations included – in the context of limited or unavailable EHS staff or resources and in response to plant shutdown orders – (i) a prioritized assessment of potential risks to human health and the environment and compliance concerns with permits or cleanup order obligations, (ii) effective communication…
Following California Governor Gavin Newsom’s shelter-in-place order in response to the COVID-19 emergency, California’s State Water Resources Control Board and the nine California Regional Water Quality Control Boards confirmed this week that they consider compliance with orders, permits and regulations to be an “essential function” under the order. The announcement does clarify that there is a mechanism for regulated entities to seek specific relief when a Water Board order or requirement cannot be timely met…
Operational Disruptions The ever-evolving COVID-19 crisis continues to pose significant challenges for industrial enterprises across the United States. Until very recently, the engines of industry continued to hum while the broader world wrestled with this unprecedented public health crisis. However, with growing constituencies across the public and private sector calling for more aggressive action on social distancing and with states now beginning to issue strict shelter-in-place orders, more and more manufacturing facilities are closing their…
EPA has issued a proposed rule that would add discarded aerosol cans to the list of hazardous wastes that can be managed and transported under the Resource Conservation and Recovery Act’s (“RCRA’s”) streamlined universal waste regulations. (83 Fed. Reg. 11654 (March 16, 2018)). Currently, most non-empty, waste aerosol cans are regulated as hazardous waste either because they exhibit a hazardous characteristic (typically ignitability) or because the can contains a RCRA-listed chemical. As a result, these…
On March 6th, the U.S. Court of Appeals for the D.C. Circuit modified its 2017 ruling that struck down portions of EPA’s definition of solid waste (“DSW”) rule. (American Petroleum Institute, et al. v. EPA, No. 09-1038 (D.C. Cir. March 6, 2018)). At issue in the case is a 2015 rule that determined when hazardous secondary materials are recycled and thus not subject to regulation under the Resource Conservation and Recovery Act (“RCRA”) as hazardous…
On September 12, 2016, EPA unveiled its Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework (“Strategy”). This Strategy reaffirms EPA’s continued focus on retailers’ compliance with RCRA, but also indicates that the Agency is working to make needed modifications to a regulatory regime that was originally developed for the industrial and manufacturing sectors. Underlying the Strategy are three main objectives: issuing agency policy, guidance and rulemaking to ensure a better fit between RCRA…