Crain Caton & James
On February 24, 2023, EPA released 2022 power plant emissions data. In its news release, EPA said that power plant emissions declined even though power plant demand increased. Switch to Natural Gas In the news release, EPA said the decreased emissions were “due primarily to changes in the mix of fuels used in electricity generation.” […]
The D.C. Circuit Court of Appeals reviewed a decision of the Federal Energy Regulatory Commission (FERC) that a solar facility that generated electricity met the statutory definition of “small.” Federal law forces public utilities to buy the power from “small” solar facilities. Definition of “Small” The statute says that power production capacity of no more […]
Fort Bend County sued the US Army Corps of Engineers (USACE) under the Administrative Procedure Act (APA), claiming USACE failed to comply with its regulatory obligations to protect upstream landowners from flooding in the Buffalo Bayou watershed in and near Houston, Texas. Dismissal and Reversal The district (trial level) court in Houston dismissed the suit, […]
Fort Bend County sued the US Army Corps of Engineers (USACE) under the Administrative Procedure Act (APA), claiming USACE failed to comply with its regulatory obligations to protect upstream landowners from flooding in the Buffalo Bayou watershed in and near Houston, Texas. Dismissal and Reversal The district (trial level) court in Houston dismissed the suit, […]
On February 22, 2023, the Supreme Court of Texas will hear oral arguments in a Multi-District Litigation case. Certain indirect investors in a petrochemical company have requested dismissal of suits filed against them by persons alleging injuries from an explosion at a facility owned by the company. Investors Allegedly Responsible The investors are private equity […]
The Sierra Club, the Center for Biodiversity, and several local environmental groups filed a Petition for Review (PFR) challenging the action of the US Maritime Administration (MARAD) relating to the Sea Port Oil Terminal (SPOT). According to Sierra Club’s press release, the groups seek review of the Record of Decision and underlying Environmental Impact Statement […]
A company’s employee, while trying to cut the wraps around a roller in a plastic extruder, was pulled into the rollers and killed. The company that purchased the extruder originally used it at another facility. The extruder came with a barrier guard electronically linked to a limit switch. The company closed the facility, disassembled the […]
EPA inspected several facilities of a large commodity and specialty chemical distributer. The inspections identified failures of the company to comply with industry standards when handling anhydrous ammonia, aqueous ammonia, chlorine, and formaldehyde. EPA initiated an enforcement action, asserting that noncompliance with industry standards violated the Clean Air Act (CAA), especially the CAA’s General Duty […]
On December 30, 2022, EPA and the US Army Corps of Engineers issued a Final Rule addressing the definition of “waters of the United States” (WOTUS) with the goal of “defining the scope of waters protected” under the Clean Water Act (CWA). On the same day, the US Department of Justice (DOJ) informed the US […]
A reactor at a chemical manufacturing facility ruptured, releasing flammable gas that ignited and burned several individuals. The injured persons sued, alleging the company’s workers were negligent, in part because they were distracted by using company-issued cell phones while monitoring the reactor. Events leading to the rupture began the day before it. The trial court […]
Several family members sued their apartment owner, claiming brain injuries from carbon monoxide exposure. The apartment owner requested that a doctor it chose be allowed to conduct examinations and testing of the plaintiffs. The apartment owner claimed it could not adequately respond to the plaintiffs’ allegations of causation and extent of injuries without its own […]
The 11th Court of Appeals, a mid-level Texas appellate court, affirmed the dismissal of the City of Midland, Texas in a cost recovery suit a company brought under the Texas Solid Waste Disposal Act (TSWDA). Sewer System Allegedly Conveyed Chemicals The company sought to recover some of the millions of dollars it spent to investigate […]
Four solar energy companies faced allegations they violated the Clean Water Act (CWA) by failing to comply with stormwater permit requirements during construction of large-scale solar generating facilities. The companies paid a total of $1.34 million to settle; each used the same contractor. Stormwater Permit Requirements for Construction Sites The CWA requires construction sites of […]
On November 11, EPA issued a supplemental proposal on methane emissions. According to EPA’s news release, the proposal will create “common sense standards” designed to “protect workers and communities, maintain and create high-quality, union-friendly jobs, and promote U.S. innovation and manufacturing of critical new technologies, all while delivering significant economic benefits through increased recovery of […]
An EPA inspection of a company’s oil and wastewater tanks led to enforcement. According to the news release from the US Department of Justice (DOJ) announcing settlement of the enforcement case, the inspection showed unauthorized volatile organic compound emissions “from pressurized gases venting through imperfectly sealed access hatches on top of the storage vessels, pressure […]
Claiming hazardous waste from a Louisiana manufacturing facility contaminated their soil and groundwater, landowners sued the facility’s past and present owners in state court. They also sued the Louisiana Department of Environmental Quality (LDEQ); the landowners claimed LDEQ knew for years the waste threatened to contaminate their property but failed to alert them. No Complete […]
The Environmental Protection Agency (EPA) announced on October 19 it had reached a settlement to resolve hazardous waste allegations against United Parcel Service (UPS). According to EPA’s news release, UPS became subject to the Resource Conservation and Recovery Act (RCRA) and its regulations “when a package containing certain hazardous materials is damaged, as well as […]
A group of Texas homeowners sued the San Jacinto River Authority, alleging the Authority’s release of water from Lake Conroe during Hurricane Harvey damaged their homes. A mid-level Texas appellate court ruled that the trial court should have dismissed the case for lack of jurisdiction; the appellate court reversed the trial court and rendered judgment […]
A chemical company addressed historical contamination at its manufacturing facility under the Superfund program through a series of administrative orders and a 2018 consent decree, which implemented the final remedial work. The decree expressly reserved the rights of the federal and state governments to pursue compensation for natural resource damages (NRD). NRD Compensation in Addition […]
The Environmental Protection Agency (EPA) uncovered several violations of the Clean Air Act (CAA) when it investigated a 2017 explosion that killed three workers, injured seven others, and “launched a 100,000-gallon tank into the air and over a six-story building before it landed on mill equipment 400 feet away.” Failure to Follow “Hot Work” Procedures […]
A chemical company and the US Department of Justice (DOJ) have reached a settlement that requires the company to pay a civil penalty of $1,112,500. The company must also install controls and “low emissions” valves at an estimated cost of $730,000. In its news release, DOJ said the settlement addresses emissions of hazardous air pollutants […]
EPA designated an area of Long Island, New York to receive material from future dredging of Long Island Sound. The State of New York opposed the designation, arguing that EPA’s designation violated the Coastal Zone Management Act (CZMA). Arbitrary and Capricious Standard The US Court of Appeals for the 2nd Circuit affirmed EPA’s designation. In […]
On August 30, 2022, the US Court of Appeals for the 5th Circuit issued its third opinion in Environment Texas v. ExxonMobil, upholding the assessment of a $14.5 million penalty for Clean Air Act (CAA) violations at ExxonMobil’s massive refining and chemical complex in Baytown, Texas. Multiple Violations and an Issue of Standing In 2014, […]
As required by the Clean Air Act, Texas submitted a State Implementation Plan (SIP) for approval to EPA. The SIP describes how Texas will attain and maintain compliance with Clean Air Act (CAA) requirements. Texas can change its SIP, subject to EPA’s approval, which may only be given if EPA determines the changes are consistent […]
When deciding to issue an air quality permit, the Texas Clean Air Act requires the Texas Commission on Environmental Quality (TCEQ) to consider possible adverse effects on those attending any school within 3,000 feet of the facility. After TCEQ issued a permit, those opposing the permit appealed TCEQ’s decision. They claimed TCEQ did not specifically consider […]
The parties to a case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) regarding the Reilly Tar CERCLA Site (the “Site”) reached a settlement in 2019, amending a 1986 settlement. Two companies that own property downgradient of the Site asked to be allowed to intervene in the case to challenge the 2019 […]
I enjoyed the 2022 Texas Environmental SuperConference in Austin, Texas last week. Many thanks to the planners and presenters. Listed below are a few items I found of interest. Virtual SOAH Hearings Will Continue The State Office of Administrative Hearings (SOAH) handles administrative permitting and enforcement matters for over 50 Texas agencies. Due to the […]
On July 22, 2022, the US Department of Justice (DOJ) announced the initiation of an environmental justice investigation into the practices of the City of Houston relating to illegal dumping. According to DOJ’s news release: “The investigation will examine whether the City’s enforcement and solid waste management operations, policies and practices in response to illegal […]
On June 28, 2022, thirteen environmental groups filed a Petition with EPA requesting compliance review of the air permitting program of the Texas Commission on Environmental Quality (TCEQ) under Title VI of the Civil Rights Act. The Petition states EPA must make changes to the Texas SIP (State Implementation Plan). Alleged Deficiencies in Public Participation […]
EPA and the State of Louisiana alleged a company violated the Resource Conservation and Recovery Act (RCRA) by failing to properly identify and manage certain waste streams as hazardous waste. According to a US Department of Justice (DOJ) news release announcing the settlement, the company agreed to a civil penalty of $1.5 million; it also […]
A company applied to the state air permitting agency to authorize rebuilding of two furnaces. In the application, the company said the rebuild involved physical changes that would not lead to significantly increased emissions. PSD Regulations for Increased Emissions After construction, EPA concluded the rebuilt furnaces increased emissions of particulate matter by significant amounts, triggering […]
The US Supreme Court’s decision declaring EPA lacked the power to promulgate the Clean Power Plan (CPP) issued during the Obama administration demonstrates the resistance to rapid change in the structure of the federal government. In West Virginia v. EPA, issued June 30, 2022, the Court invoked the “major questions doctrine.” The Court determined EPA […]
The Supreme Court of Texas agreed to hear a case alleging that “herbicide drift” from aerial spraying damaged 111 cotton fields. The trial court had struck the farmers’ causation experts and dismissed the case based on the pre-trial motion of the herbicide’s distributor. On appeal, an intermediate appellate court ruled the trial court should not […]
The US Department of Justice (DOJ) announced it has settled allegations that five related companies improperly operated flares at three manufacturing facilities. According to DOJ’s news release announcing the settlement, the companies “agreed to make upgrades and perform compliance measures estimated to cost $110 million to resolve allegations that they violated the Clean Air Act […]
The Supreme Court of Texas upheld issuance of an injection well permit by the Texas Commission on Environmental Quality (TCEQ) to TexCom Gulf Disposal. The permit allows TexCom to inject non-hazardous industrial waste into its subsurface injection wells. RCT’s Issuance of “No Harm” Letters Among the issues presented in the case was the role of […]
The Texas Supreme Court provided guidance on how pipeline companies can establish their authority to condemn property. The company must show the pipeline will carry a product identified in one of two Texas statutes and that the pipeline will serve at least one customer unaffiliated with the pipeline company. Independent Statutes Texas law gives “common […]
A company pleaded guilty to willfully violating an Occupational Safety and Health Administration (OSHA) rule in the deaths of five workers at a power plant. According to the US Department of Justice (DOJ) news release, the company used a contractor to perform high pressure water blasting in an attempt to clear a slag accumulation. Several […]
The Securities and Exchange Commission (SEC) brought an enforcement action claiming a hedge fund and its founder violated the securities laws. SEC 1) ordered almost a million dollars in penalties and disgorgement and 2) barred the fund’s founder from various securities industry activities. On appeal, the US Court of Appeals for the 5th Circuit vacated […]
The US Forest Service (USFS) approved a mining plan of operations (MPO) that called for digging a pit over a mile wide and using 2,447 acres for a disposal area, all within a National Forest. In a suit challenging approval of the MPO, opponents alleged USFS exceeded its authority. Company Lacked Mining Claims to the Disposal […]
In a May 5 news release, the US Department of Justice (DOJ) announced the launching of a “comprehensive environmental justice strategy” and also announced issuance of “an Interim Final Rule that will restore the use of supplemental environmental projects in appropriate circumstances.” DOJ Environmental Justice Memorandum On the same day, Associate Attorney General Vanita Gupta […]
In response to a citizen’s suit under the Clean Water Act (CWA), the defendants obtained dismissal from the district (trial level) court, because the state agency had issued an administrative order for the same violations. In Blackstone Headwaters Coalition v. Gallo Builders, the1st Circuit issued an en banc opinion that the citizen’s suit could proceed […]
On April 22, 2022, the US Department of Justice (DOJ) released its “Accomplishments Report for Fiscal Year (FY) 2021.” An accompanying DOJ news release quoted Assistant Attorney General Todd Kim of DOJ’s Environment and Natural Resources Division (ENRD), who said, “ENRD has an incredibly important mission to protect public health and welfare by enforcing the […]
A wind energy company pleaded guilty to three counts of violating the Migratory Bird Treaty Act (MBTA). According to the news release from the US Department of Justice (DOJ), the company “acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 […]
A wind energy company pleaded guilty to three counts of violating the Migratory Bird Treaty Act (MBTA). According to the news release from the US Department of Justice (DOJ), the company “acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 […]
On March 28, 2022, EPA released its Fiscal Year (FY) 2022-2026 Strategic Plan. According to the accompanying news release, the Strategic Plan “provides a roadmap to achieve EPA’s and the Biden-Harris Administration’s environmental priorities over the next four years.” According to its Overview, the Strategic Plan adds the foundational principle to “advance justice and equity” […]
On March 18, 2022, EPA Administrator Reagan issued “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency,” a memorandum revoking a 2017 memorandum and accompanying directive issued during the Trump administration. Claims of Improper EPA Policymaking through Settlements The Trump-era documents were a response to concerns that EPA made improper policy decisions […]
An oilfield worker responded to a nighttime call to check on a pump house. After the worker failed to come home when expected, his wife, knowing the location, went to look for him. Exposure to hydrogen sulfide in the pump house killed them both. The US Department of Justice (DOJ) issued a news release announcing […]
A chemical company agreed to pay a $3.4 million civil penalty and spend an estimated $118 million in compliance measures at three Texas facilities to settle allegations that its flare operations had violated the Clean Air Act. Improper Flare Operation According to the news release issued by the US Department of Justice (DOJ), “the company […]
An environmental group filed a Clean Water Act citizen suit, alleging a company did not comply with the permitting process before filling a half-acre of wetlands. Group Must Adequately Plead an Injury in Fact to Establish Standing Among the requirements to establish standing to sue, the group had to allege one of its members suffered […]
A federal district (trial level) court recently ruled that an investors’ class action lawsuit can proceed. The investors allege management knowingly understated the publicly held company’s environmental liabilities. Class Action Complaint Met Pleading Requirements Federal law requires security fraud claims be pleaded with some specificity. The company argued the allegations in the investors’ complaint did […]
In a February 18, 2022 news release, EPA acknowledged that emissions from power plants increased in 2021 from 2020 levels. EPA attributed the increase to “a rebound in coal-fired generation as natural gas prices and energy demand increased.” Compared to 2020, NOx emissions increased 6%, SO2 increased 20%, CO2 increased 7%, and mercury increased 13%. […]
On January 20, 2022, EPA announced its Enforcement and Compliance Accomplishments for fiscal year (FY) 2021. EPA’s news release highlighted an increase in the economic value of commitments companies have made to achieve environmental compliance as a result of enforcement and an increase in the amount assessed in penalties. Fewer Civil Cases Since 2011 In […]
The U.S. Court of Appeals for the Fourth Circuit vacated the Biological Opinion of the U.S. Fish and Wildlife Service (FWS) for the Mountain Valley Pipeline Project, finding FWS failed to adequately consider the project’s impacts on two endangered species of fish. The Federal Energy Regulatory Commission (FERC) authorized the project, a pipeline proposed for […]
On January 26, EPA issued a news release relating to environmental justice, indicating EPA was implementing a series of broad policy actions to address environmental justice concerns and taking specific steps for several local communities recently visited by Administrator Reagan. Inspections, Air Monitoring, and Ethylene Oxide The broad policy initiatives will include aggressive use of […]
In a move likely to end the ongoing struggle with the definition of “waters of the United States” (WOTUS) as the term relates to ephemeral streams, which have flow for just a short time, the US Supreme Court has agreed to hear a case on that issue. On January 24, 2022, the Court accepted the […]
Earthjustice, on behalf of three environmental groups, filed suit challenging two EPA rules relating to reporting requirements for per-and polyfluoroalkyl substances (PFAS). The rules, issued in 2020 and 2021, establish de minimis concentration exemptions and alternate threshold exemptions for reporting PFAS to EPA for the Toxics Release Inventory (TRI). Suit Seeks to Increase Reporting and […]
A Texas federal district (trial level) court judge dismissed a suit brought by Texas and 22 other states challenging the validity of President Biden’s revocation of the permit for the Keystone Pipeline. In dismissing the case, the judge held that the case was moot because “Keystone XL is dead.” No Jurisdiction If Case Is Moot […]
On December 21, 2021, EPA issued “Seasonality and Climate Change: A review of observed evidence in the United States.” The peer-reviewed report summarizes observed changes related to seasonality in the United States. It discusses how climate change affects the timing and nature of seasonal events and describes some of the implications of those changes. The […]
EPA has announced that Dr. Earthea Nance will be the new Regional Administrator for Region 6, which covers Arkansas, Louisiana, Oklahoma, New Mexico, and Texas. Dr. Nance holds civil engineering degrees from the University of California-Davis and a Ph.D. in environmental engineering from Stanford University. She has been a registered professional engineer for 25 years […]
Based on a guilty plea, a court has sentenced a pipeline company to a $15 million fine and three years of probation. The case stems from a 2014 discharge of 29 million gallons of produced water, which the US DOJ’s news release characterized as the largest inland oil spill in US history. According to the […]
A barge company has agreed to pay $15 million in damages and assessment costs to resolve claims for injuries to natural resources under the Oil Pollution Act. According to the Complaint filed by the United States and the State of Texas, a towboat owned by the company, operating in fog, attempted to cross the Houston […]
On Monday, November 22, 2021, TC Energy submitted a formal Request for Arbitration of a legacy North American Free Trade Agreement (NAFTA) claim under the United States-Mexico-Canada Agreement. TC Energy seeks economic damages resulting from the revocation of the Keystone XL Project’s Presidential Permit. In July, TC Energy began the process by filing a Notice of Intent to […]
On November 19, 2021, the Texas Supreme Court granted the petition for review in Dyer v TCEQ, which means the Court has agreed to hear arguments in this appeal of a decision by the Austin Court of Appeals. Court Considers only a Limited Number of Cases The Texas Supreme Court agrees to consider only a […]
On October 28, 2021, Deputy Attorney General Lisa Monaco announced in a speech to the American Bar Association’s National Institute on White Collar Crime “new actions that the department is taking today to strengthen the way we respond to corporate crime.” Overly Cautious DOJ In her speech, she criticized past efforts as being overly cautious […]
On November 2, 2021, EPA announced it is proposing new rules designed to reduce emissions of methane and other pollutants from oil and gas operations. New Monitoring to Detect Leaks According to the Fact Sheet summarizing the proposal, the new rules will require “a comprehensive monitoring program to require companies to find and fix leaks […]
On October 27, 2021, the US Fish & Wildlife Service and the National Marine Fisheries Service (the Services) announced their intention to rescind the rule defining “habitat,” which had become effective earlier this year. If rescinded, the federal government will again be issuing rules and taking enforcement actions aimed at protecting habitat under the Endangered […]
On October 18, 2021, EPA issued a news release of Administrator Reagan’s announcement of a “comprehensive Strategic Roadmap” to confront per-and polyfluoroalkyl substances (PFAS) contamination. According to the news release, the Roadmap has three guiding strategies: 1) increase investments in research, 2) leverage authorities to restrict PFAS chemicals from being released into the environment, and […]
Due to alleged flare issues at six of its facilities, a petrochemical company has agreed to pay a $3.4 million civil penalty and to spend an estimated $50 million in upgrades and performance testing, according to a news release issued by the US Department of Justice (DOJ). Failure to Combust VOCs According to DOJ, the […]
On October 6, 2021, the US EPA released greenhouse gas (GHG) data for 2020, showing decreasing GHG emissions, largely due to power plants switching fuel from coal to natural gas. While GHG emissions from oil and gas have increased in recent years, reductions from power plants offset those increases by many times. Power Plant GHG […]
The US Department of Justice (DOJ) announced that five subsidiaries of West Texas Gas, Inc. (WTG) will pay more than $3 million in civil penalties “to resolve claims stemming from fatal chemical accidents and accident prevention program violations.” They also agreed to spend up to $5 million on compliance measures. Fatalities from a 2015 Fire […]
On September 16, 2021, EPA rescinded the Trump administration’s guidance for determining when a discharge through groundwater requires a permit. Going forward, “EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act.” Supreme […]
The US Department of Justice (DOJ) announced that Formosa Plastics Corporation, Texas will pay $2.85 million in civil penalties to resolve allegations its facility in Point Comfort, Texas violated the Clean Air Act (CAA). Formosa has also agreed to upgrade its risk management program (RMP), with an estimated cost of at least $1.4 million. Fires, […]
In Von Duprin v. Major Holdings, the US Court of Appeals for the 7th Circuit observed “joint and several liability often reflects the norm in complex environmental cleanup cases because most circumstances reveal numerous disposers of waste over long periods of time where after-the-fact identification of who contributed what and thus who caused what portion […]
In June, the Biden administration announced it will revise the definition of “waters of the United States” (WOTUS) (See Administration Announces Intent to Revise Definition of WOTUS). In July, the administration announced the Army and EPA will issue a “foundational rule” that will withdraw the WOTUS definition in the Navigable Waters Protection Rule issued during the […]
The US Court of Appeals for the 8th Circuit rejected a novel attempt by a federal district (trial) court judge to remedy air pollution from a power plant. In US v. Ameren Missouri, the district court judge determined Ameren’s power plant located 35 miles south of St. Louis had made modifications and operated without obtaining […]
Effective August 14, 2021, the Texas Commission on Environmental Quality (TCEQ) has issued the new 2021 Multi-Sector General Permit (MSGP) for industrial facilities. Renewals Due by November 12, 2021 Existing permittees have until November 12, 2021 to renew their existing authorizations by submitting a renewal Notice of Intent (NOI) or No Exposure Certification (NEC), as […]
An energy company has agreed to pay $1 million to settle Clean Water Act allegations related to two tank batteries that support oil and gas production. In 2014, one of the batteries discharged over 7,000 gallons of condensate and produced water. At both facilities, which were in Colorado floodplains, investigations found them deficient in Spill […]
An intermediate Texas court, the 12th Court of Appeals in Tyler, Texas, affirmed a Henderson County, Texas District (trial level) Court’s injunction that ordered the permanent closure of a chicken farm. The District Court’s injunction ordered the owners and operators of the farm and the company that provided the chickens to close the farm and […]
A news release issued July 30, 2021, “EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States,” gives the Biden administration’s plan for changing the definition of “waters of the United States” (WOTUS). Pre-2015 Definition Initially, EPA and the Army will issue a “foundational rule” that will withdraw the […]
In news releases dated July 20 through July 22 and posted on EPA’s website are five announcements of enforcement settlements with private entities. Lack of Pollution Does Not Prevent Penalties Common to all announcements: EPA did not allege an actual release of pollution beyond facility boundaries. Alleged deficiencies were operating facilities with inadequate pollution prevention, […]
A significant effect of the definition of “waters of the United States” (WOTUS) in the Navigable Waters Protection Rule (NWPR) issued by the Trump administration is eliminating federal jurisdiction over ephemeral streams. Surface Water in Direct Response to Precipitation The Code of Federal Regulations defines “ephemeral” as “surface water flowing or pooling only in direct […]
The 1st Circuit Court of Appeals directed a district (trial level) court to proceed with a case brought by The Conservation Law Foundation (CLF) against ExxonMobil. The 1st Circuit said the district court improperly stayed the case while EPA was considering revisions to ExxonMobil’s discharge permit under the Clean Water Act (CWA). CLF Alleges ExxonMobil […]
The US Supreme Court held the Natural Gas Act (NGA) allows private pipeline companies to condemn state property to secure routes for their pipelines. In PennEast Pipleline v. New Jersey, the Court said the 3rd Circuit Court of Appeals was wrong in concluding the NGA did not give private pipelines the power to use eminent […]
Two recent cases serve as a reminder that companies face enforcement action, including significant penalties, even when they have no illegal discharges or emissions. Companies are expected to comply with EPA’s rules regarding structures and plans in place to protect from catastrophic events. When EPA inspections show required measures are not in place, expect enforcement. […]
In a June 9, 2021 news release, EPA and the Army announced their intent to revise the regulatory definition of “waters of the United States” (WOTUS) “to better protect our nation’s vital resources.” Claims of Harm from Existing Rule The Navigable Waters Protection Rule, promulgated in 2020 under President Trump, was one of several administrative […]
TC Energy and Alberta Announce Termination of Keystone XL Pipeline TC Energy Corporation and the Government of Alberta announced termination of the Keystone XL Pipeline Project. President Biden Revoked Permit In its news release, TC Energy said construction activities were suspended after President Biden revoked the project’s Presidential Permit on January 21, 2021. On June […]
On May 26, 2021, EPA released a report on long-term air pollution and economic trends, “Our Nation’s Air: Trends Through 2020.” According to EPA’s news release, the Report “documents the work EPA and its state, Tribal, community, and industry partners have done to achieve improvements in outdoor air quality across the country.” Decreases in Key […]
On May 13, 2021, EPA’s Office of Inspector General issued “Resource Constraints, Leadership Decisions, and Workforce Culture Led to a Decline in Federal Enforcement.” The Report is the result of an audit of EPA’s enforcement trends for fiscal years 2006 through 2018, years that included all or part of the Bush, Obama, and Trump administrations. […]
The Endangered Species Act (ESA), like many environmental statutes, allows for citizen suits but requires Notice Letters be sent to the alleged violator and the government. The Notice Letter requirement provides the government an opportunity to review the allegations and determine if the government should bring enforcement. If after 60 days the government does […]
Alerts about enforcement trends during the Trump administration identified ongoing budget constraints that reduced the number of EPA enforcement cases. Indeed, this trend began during the Obama administration and is largely dependent on funding, not on the party of the administration. However, the Trump EPA did not appear to regret the decrease in enforcement […]
Californians for Alternatives to Toxics (CAT) brought a citizen suit against Kernen Construction, Bedrock Investments, Scott Farley, and Kurt Kernen (Defendants) for violations of the Clean Water Act (CWA), which allows private citizens to sue CWA violators for penalties (payable into the US Treasury), injunctive relief, and attorneys’ fees. Thousands of Violations Acknowledged Defendants admitted […]
While employed by a temporary staffing agency, Stevenson worked on assignment for Waste Management. After being injured on the job, Stevenson collected worker’s compensation through the temporary staffing agency and then sued Waste Management, saying its negligence caused the injury, which was not fully compensated by worker’s compensation. Worker Cannot Sue the Employer In Waste […]
In a speech made April 20, 2021, Acting Assistant Attorney General Matthew Colangelo announced the US Department of Justice (DOJ) and EPA had jointly created “the nation’s first-of-its-kind Environmental Crime Victim Assistance Program.” More Involvement of Victims The goal of the program is to “help ensure that victims of federal environmental crimes are properly identified, […]
To protect a dam, the San Jacinto River Authority (River Authority), released a large amount of water during Hurricane Harvey. In doing so, the River Authority, a governmental entity, acknowledged the release would cause “devasting flooding downstream” but asserted it did not have the option to stop the release. Landowners Claim River Authority Action Was […]
On April 7, 2021, EPA issued a news release announcing Administrator Regan’s environmental justice directive. All EPA offices shall “clearly integrate environmental justice considerations into their plans and actions.” According to the news release, “communities whose residents are predominantly of color, Indigenous, or low-income continue to suffer from disproportionately high pollution levels and the resulting […]
“All facilities with 1320 gallons of oil that have the potential for a spill to reach waters of the United States are required to have an SPCC plan.” This is a statement EPA included in its news release announcing settlement with Merit Energy regarding a Clean Water Act (CWA) enforcement matter. The reference to “SPCC” […]
In 2014, Chesapeake Appalachia LLC informed EPA, the US Army Corps of Engineers (USACE), and the Pennsylvania Department of Environmental Protection (PDEP) that an internal audit had identified potential unauthorized discharges of fill material without applicable permits at multiple sites in Pennsylvania. Eventually, Chesapeake disclosed potential unauthorized discharges at a total of 76 sites across […]
On March 15, 2021, the US Securities and Exchange Commission (SEC) issued a Public Statement requesting “public input” from “investors, registrants, and other market participants on climate change disclosure.” SEC’s Ongoing Evaluation of Climate Change Disclosure According to the Public Statement, SEC’s 2010 Climate Change Guidance indicated “information about climate change related risks and opportunities […]
In 2014, a tanker trailer containing waste from oil wells exploded during welding, killing the welder. The tank had not been properly cleaned prior to welding, nor had the welder been properly trained or supervised, according to the US Department of Justice (DOJ) news release on the guilty plea entered by the welder’s employer. Cover-up […]
James Lucero dumped dirt and debris onto land near the San Francisco Bay. The federal government brought criminal charges under the Clean Water Act, alleging Lucero knowingly discharged pollution into wetlands, which constitute “waters of the United States.” In US v Lucero, the US Court of Appeals for the 9th Circuit reversed the conviction and […]