November 4, 2015
The latest effort by pipeline opponents to slow FERC approvals focuses on the National Environmental Policy Act (“NEPA”). NEPA requires environmental impact statements for “major federal actions” which are determined to “significantly affect the quality of the human environment.” The requirement of FERC approval and the need for other federal permits for pipeline projects triggers NEPA. …
November 3, 2015
Starting in October 2011, the Environmental Integrity Project and other organizations petitioned EPA to add the Oil and Gas Extraction industrial sector to the scope of industrial activity covered by the reporting requirements of Section 313 of the Emergency Planning and Community Right to Know Act, commonly known as the “Toxics Release Inventory.” That petition sought to include all sub-sectors…
November 2, 2015
Two weeks ago, two of our Lexington colleagues wrote about the Court of Appeals for the Sixth Circuit staying the “Clean Water Rule.” The EPA and the Corps of Engineers promulgated this regulation to define what constitutes “waters of the United States” (WOTUS). Although the agencies have gone to extraordinary lengths to defend the regulation as a mere “clarification,…
October 29, 2015
We have previously reported (in March 2015 and July 2015) on a challenge by the Sierra Club and other groups to EPA’s failure to respond to a petition requesting that EPA rescind the NPDES programs in Kentucky and West Virginia.
After false starts in federal district courts, the Sierra Club filed actions in both the Sixth Circuit and the Fourth Circuit Court of Appeals challenging EPA’s…
October 26, 2015
The U.S. District Court for the Eastern District of North Carolina has affirmed a very traditional issue of property rights in a very unusual setting. The district court affirmed that one may acquire ownership of a river by means of adverse possession. Equally significant is that adverse possession may be successfully asserted against the state.
The facts are highly unusual. Aluminum giant ALCOA…
October 21, 2015
The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act. It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species.
Cumberland…
October 19, 2015
According to press accounts, the Oak Hill Town Council passed a non-binding resolution supporting a possible county ordinance that would outlaw the storage, disposal or injection of coal refuse slurry or the waste byproducts from hydrofracking within the boundaries of Fayette County, West Virginia. The Town Council referenced two model county ordinances posted on a website maintained by…
October 19, 2015
The Clean Air Act requires Title V operating permits for new and modified “major sources” and enhanced permit review (New Source Review or Prevention of Significant Deterioration (“PSD”) Review) for “major stationary sources” of air pollutants. EPA’s regulations define a “stationary source” as “any building, structure, facility, or installation…
October 15, 2015
The United States Court of Appeals for the Sixth Circuit recently imposed a nationwide stay of the EPA’s controversial new “Clean Water Rule.” States and industry alike have viewed the Rule, effective on August 28, 2015, as an impermissible expansion of Clean Water Act jurisdiction. The Act governs discharges into “navigable waters,” vaguely defined by Congress to mean “waters of…
September 29, 2015
Introduction
On September 25, 2015, the United States Environmental Protection Agency (“EPA”) proposed a rule to address the management and disposal of hazardous waste pharmaceuticals at healthcare facilities. The proposed rule seeks to do the following:
September 21, 2015
In early June, EPA released its draft report assessing the potential impacts of hydraulic fracturing for oil and gas on drinking water resources. The comment period recently ended in late August. EPA’s study was met with general applause from the oil and gas industry as EPA ultimately found that hydraulic fracturing activities have not led to widespread, systematic impacts to drinking water…
August 31, 2015
A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.
A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge that…
November 4, 2015
The latest effort by pipeline opponents to slow FERC approvals focuses on the National Environmental Policy Act (“NEPA”). NEPA requires environmental impact statements for “major federal actions” which are determined to “significantly affect the quality of the human environment.” The requirement of FERC approval and the need for other federal permits for pipeline projects triggers NEPA. …
November 3, 2015
Starting in October 2011, the Environmental Integrity Project and other organizations petitioned EPA to add the Oil and Gas Extraction industrial sector to the scope of industrial activity covered by the reporting requirements of Section 313 of the Emergency Planning and Community Right to Know Act, commonly known as the “Toxics Release Inventory.” That petition sought to include all sub-sectors…
November 2, 2015
Two weeks ago, two of our Lexington colleagues wrote about the Court of Appeals for the Sixth Circuit staying the “Clean Water Rule.” The EPA and the Corps of Engineers promulgated this regulation to define what constitutes “waters of the United States” (WOTUS). Although the agencies have gone to extraordinary lengths to defend the regulation as a mere “clarification,…
October 29, 2015
We have previously reported (in March 2015 and July 2015) on a challenge by the Sierra Club and other groups to EPA’s failure to respond to a petition requesting that EPA rescind the NPDES programs in Kentucky and West Virginia.
After false starts in federal district courts, the Sierra Club filed actions in both the Sixth Circuit and the Fourth Circuit Court of Appeals challenging EPA’s…
October 26, 2015
The U.S. District Court for the Eastern District of North Carolina has affirmed a very traditional issue of property rights in a very unusual setting. The district court affirmed that one may acquire ownership of a river by means of adverse possession. Equally significant is that adverse possession may be successfully asserted against the state.
The facts are highly unusual. Aluminum giant ALCOA…
October 21, 2015
The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act. It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species.
Cumberland…
October 19, 2015
According to press accounts, the Oak Hill Town Council passed a non-binding resolution supporting a possible county ordinance that would outlaw the storage, disposal or injection of coal refuse slurry or the waste byproducts from hydrofracking within the boundaries of Fayette County, West Virginia. The Town Council referenced two model county ordinances posted on a website maintained by…
October 19, 2015
The Clean Air Act requires Title V operating permits for new and modified “major sources” and enhanced permit review (New Source Review or Prevention of Significant Deterioration (“PSD”) Review) for “major stationary sources” of air pollutants. EPA’s regulations define a “stationary source” as “any building, structure, facility, or installation…
October 15, 2015
The United States Court of Appeals for the Sixth Circuit recently imposed a nationwide stay of the EPA’s controversial new “Clean Water Rule.” States and industry alike have viewed the Rule, effective on August 28, 2015, as an impermissible expansion of Clean Water Act jurisdiction. The Act governs discharges into “navigable waters,” vaguely defined by Congress to mean “waters of…
September 29, 2015
Introduction
On September 25, 2015, the United States Environmental Protection Agency (“EPA”) proposed a rule to address the management and disposal of hazardous waste pharmaceuticals at healthcare facilities. The proposed rule seeks to do the following:
September 21, 2015
In early June, EPA released its draft report assessing the potential impacts of hydraulic fracturing for oil and gas on drinking water resources. The comment period recently ended in late August. EPA’s study was met with general applause from the oil and gas industry as EPA ultimately found that hydraulic fracturing activities have not led to widespread, systematic impacts to drinking water…
August 31, 2015
A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.
A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge that…
