Monthly Archives: August 2009

Dog Bites Man: EPA Announces Intent to Hire More Criminal Investigators

In a story from today’s Daily Environment Report, Cynthia Giles, the new Assistant Administrator for Enforcement at EPA, stated that she was looking increase the number of criminal investigators at EPA, noting that

Criminal enforcement is a very important part of our arsenal in achieving compliance and has a powerful deterrent effect. It’s important to us that we’re out there and that we pursue the criminal cases.… More

New Life in EPA’s NSR Enforcement Initiative: EPA FIles Another Law Suit

In another sign that the NSR program is alive and well under the Obama administration, the United States (together with the State of Illinois, filed suit Thursday against Midwest Generation, alleging violations of NSR requirements at six coal-fired power plants. Although the action is not too surprising, given that the Bush EPA had issued a notice of violation to Midwest Generation in 2007, it remains noteworthy. Each new prosecution serves to remind generators that failure to comply with NSR rules can lead to significant costs.… More

Imminent and Substantial Endangerment Under RCRA — I Know It When I See It

Justice Potter Stewart famously said, with respect to obscenity, that “I know it when I see it.” I fear that the test for what constitutes an imminent and substantial endangerment under RCRA is no clearer than Justice Stewart’s subjective test regarding obscenity.

This week, in a decision that is good news for RCRA defendants, Judge Illlston, of the Northern District of California, ruled, in West Coast Home Builders v.… More

EPA Might Take Another Step Towards Regulating Greenhouse Gases Under the Clean Air Act

According to an article by BNA published this morning, EPA may soon act to apply the prevention of significant deterioration (PSD) provisions of the Clean Air Act to facilities that emit more than 25,000 tons of carbon dioxide annually.  Presumably, EPA’s action is either an effort to exert leverage on Congress to pass pending climate change legislation or to ensure that GHG are regulated in the event that legislation doesn’t pass —… More

Is it Good News or Bad? MassDEP Wins an Adjudicatory Hearing Appeal

Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach field associated with the facility would damage drinking water supplies and nearby wetlands. The Court affirmed the MassDEP Commissioner’s rejection of the abutters’… More

New Clouds on the Storm(water) Front: EPA Takes Enforcement Action Against 9 Municipalities

As we have reported, EPA and MADEP have both been taking steps over the past year to broaden the scope of their stormwater programs beyond existing regulation under the rules concerning stormwater discharges associated with industrial or construction activity. EPA has proposed using residual designation authority in Maine and Massachusetts and the MADEP proposed sweeping rules governing existing private facilities.

In the regulated community,… More

Massachusetts Limits The Standing of Businesses to Challenge Permits Issued to Competitors

In an important decision yesterday, the Massachusetts Supreme Judicial Court ruled that the operator facility participating in the renewable portfolio standard program did not have standing to challenge a state decision authorizing other facilities to participate in the RPS program. The decision may have broad implications regarding when businesses may challenge the issuance of permits or other approvals to competitors in Massachusetts.

In Indeck Maine Energy v.… More

Stormwater Discharges From Construction Activity: What Next From EPA?

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically,… More

EPA Region I Still Not Idle on the Anti-Idling Front: Yet another Six-Figure Penalty

EPA announced today that it had reached yet another six-figure penalty settlement in an anti-idling case.  This time, the penalty was $650,000. This is one of the larger penalties EPA has obtained in this area.  There appear to be several reasons for the magnitude of the penalty.  First, the defendant, Paul Revere Transportation, LLC, was apparently a recidivist.  It has been the subject of an anti-idling enforcement action in 2003.… More