Monthly Archives: April 2011

MassDEP Commissioner Ken Kimmell Wants Regulatory Reform: Do the DEP Employees Want It?

New MassDEP Commissioner Ken Kimmell has launched a regulatory reform effort at DEP. As everyone knows, Ken did an outstanding job as EEA General Counsel and I expect he will be an outstanding DEP Commissioner. I hope he succeeds and I fully support the regulatory reform initiative. However, he does have one major problem – his staff, other than his senior staff, doesn’t believe in it. Street level bureaucracy is not an abstract intellectual concept;… More

EPA Issues New Rapanos Guidance: Perhaps the Agency Really Is Listening

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.… More

EPA Is Still In Business: Proposes Draft Construction General Permit for Stormwater

For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least one acre (or less, if the project is part of a common development plan that is greater than one acre). The revised CGP would replace the current CGP which is set to expire on June 30. EPA has proposed to extend the current CGP through January 31,… More

Biggest Thing to Happen to TVA Since the Snail Darter

Thursday afternoon, EPA and the Tennessee Valley Authority announced one of the largest pollution reduction consent decrees in US history – resulting in between $3 to $5 billion of investment in air pollution controls, and retirement of almost one-third of TVA’s coal-fired generating units within the next few years.  Over the next decade, it will reduce TVA’s total emissions of nitrogen oxides by 69% and sulfur dioxide by 67%. … More

The Regulators Still Hold All the Cards: The SJC Affirms DEP’s Regulatory Authority Over Cooling Water Intake Structures

Sometimes I’m so timely I can’t stand it. This morning, I posted about the difficulty in challenging regulations under Massachusetts law. Later this morning, the SJC agreed. In Entergy v. DEP, the SJC upheld DEP’s authority to regulate cooling water intake structures under the state CWA. Funny how the SJC cited to the same language here as did Judge Sweeney in the Pepin case.

We will apply all rational presumptions in favor of the validity of the administration action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.… More

The Regulators Really Do Hold the Cards in Massachusetts: DFW’s Priority Habitat Regulations Survive a Challenge

Anyone who has ever tried to challenge a regulation in Massachusetts knows that it is an uphill battle. Just how tilted the playing field is was reinforced late last month in the decision in Pepin v. Division of Fisheries and Wildlife, rejecting a challenge to DFW’s “priority habitat” regulations. The case involves the Eastern Box Turtle, perhaps the most common of state-listed species.

As our Massachusetts readers know,… More

Half Way There On Pleading CERCLA Contribution Claims

In its 2004 decision in Cooper Industries v. Aviall, the Supreme Court turned upside down many years of settled CERCLA jurisprudence establishing that a PRP only has contribution claims against other PRPs under Section 113(f)(1) and not direct cost recovery claims under Section 107(a).  A decision earlier this week by the Eighth Circuit, Morrison Enterprises v. City of Hastings, coupled with the Supreme Court’s 2007 decision in Atlantic Research,… More

The Battle Against Guidance Continues

I’m beginning to feel like a broken record, but the drumbeat of the anti-guidance crowd is not letting up. Earlier this week, the Waters Advocacy Coalition, which is a group of farm and industry trade groups, sent a letter to EPA and the Army Corps of Engineers, requesting that EPA and the Corps withdraw their plan to issue further guidance on the interpretation of “navigable waters” post-Rapanos. It’s not surprising that this group would oppose the guidance. What is most interesting –… More

Hurray! A District Court Actually Follows Burlington Northern

Recently, I expressed concern that District Courts, which traditionally have never seen a CERCLA plaintiff they didn’t like, would ignore the Supreme Court’s Burlington Northern decision – at least until there is another Supreme Court decision affirming that Supremes really meant the two-part holding in Burlington Northern: (1) divisibility isn’t that hard and (2) parties aren’t liable as arrangers unless they actually intended to dispose of hazardous material. … More