The EPA’s Audit Policy Program provides incentives for facilities to discover, correct, and disclose violations of environmental laws. The agency’s continued enthusiasm for the Audit Policy has, at times, been questionable. But on February 5, 2021, the EPA posted an updated Audit Policy Program FAQs document on its website confirming that the agency continues to support voluntary environmental auditing under the Biden Administration.
Read MoreTCEQ may change its Penalty Policy to increase assessed penalty amounts.
Read MoreExperienced environmental practitioners know that to understand an issue, you must read the law, the regulation, the cases, AND applicable agency guidance. Identifying guidance has historically required searching various antiquated agency databases, agency websites, reviewing secondary sources, and even then, one was often left with interpreting conflicting conclusions. EPA is seeking to address these problems with its latest guidance reforms.
Read MoreLast week brought two major developments under the Clean Water Act. EPA published the 2020 Waters of the United States (WOTUS) Rule, which attempts to define the scope of waters subject to regulation under the CWA. Among other things, the 2020 WOTUS Rule excludes groundwater from the definition of “waters of the United States.” But just days later, the United States Supreme Court held in County of Maui v. Hawaii Wildlife Fund that, in certain circumstances, discharges to groundwater are subject to CWA permitting requirements.
Read MoreOn March 2, 2020 EPA published a final rule formalizing the procedures that its inspectors must follow while conducting civil inspections under RCRA. The rule is consistent with long-standing practice. The rule codifies the inspection into 10 steps.
Read MoreOne of the main concerns with environmental due diligence in a real estate transaction is limiting CERCLA liability. In July 2019, EPA revised its CERCLA guidance on landowner defenses. The new guidance is helpful in that it elaborates on how the agency views the elements of the defenses and, particularly for those not fully versed in the statute, includes a chart summarizing which elements apply to each defense.
Read MoreThe United States Security and Exchange Commission recently proposed amending Regulation S-K that would, if adopted, alter environmental disclosures. Companies subject to Regulation S-K should carefully review the rulemaking (which includes changes to non-environmental disclosures) and consider submitting comments.
Read MoreCompanies are often required to submit information to federal environmental regulatory agencies, some of which may be considered confidential and proprietary. While FOIA contains provisions protecting confidential information from disclosure, courts interpreting that exception have applied a “competitive harm” test requiring parties opposing disclosure to prove not only that the information is confidential but also that they will suffer substantial competitive harm if the information is disclosed. In a 6-3 decision, Food Marketing Institute v. Argus Leader, the Supreme Court rejected that test. This holding reduces the burden on companies attempting to protect confidential business information from FOIA disclosure.
Read MoreIn June 2019 the EPA office of Enforcement and Compliance Assurance finalized new National Compliance Initiatives. These “NCIs” signal the agency’s enforcement priorities for FY2020 through FY2023.
Read More