Monthly Archives: February 2016

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power plant.  Rush IslandTrue, the court denied EPA’s motions for summary judgment.  However, it also denied Ameren’s motions and on balance probably left EPA feeling better than Ameren about its prospects at trial. … More

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze grand canyonrequirements and instead promulgate its own federal implementation plan.  The decision has a number of interesting elements and is well worth a read, but it’s most notable for its treatment of the deference issue.

We all know that courts defer to reasonable agency decision-making. … More

MassDEP Releases Long-Awaited LNAPL Guidance

MassDEP recently published its final guidance for Light Nonaqueous Phase Liquids (LNAPL).   The document provides guidance on investigating and assessing the presence and migration of LNAPL at disposal sites regulated under the Massachusetts Contingency Plan (MCP).

When MassDEP amended the MCP regulations back in 2014, it included some changes to address petroleum sites with LNAPL. Previously, sites with 1/2” or more of LNAPL present were stuck at a temporary solution.… More

The Writing on the Wall Moves to the Federal Register: No 30-Year Take Permits

As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles SOARING EAGLE-1000 pixels widefrom wind farms violates NEPA.  This week, FWS bowed to reality and revised the permit to change the term to five years.

No word on any efforts by FWS to provide the necessary analysis under NEPA that might justify a 30-year term. … More

Stop the Presses. Superfund is Stupid.

I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating.  Today’s exhibit?  New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York’s natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed.… More

If It Walks Like a Carbon Tax and Talks Like a Carbon Tax, (Then the GOP Hates It.)

Yesterday, the White House released a fact sheet describing its efforts to create a “21st Century Clean Transportation System”.  There’s a lot of interesting material in the plan, but all the headlines have been on the President’s inclusion of a $10/barrel tax on oil in his FY2017 budget as a means of paying for the various improvements contained in the plan.

The fact sheet doesn’t use the words “carbon tax” carbon taxand it emphasizes the purposes for which the tax revenue will be used,… More

If MassDEP calls…

TCE_moleculesAt a recent meeting of the Massachusetts Department of Environmental Protection’s Waste Site Cleanup Advisory Committee, MassDEP announced that it will soon begin the process of contacting owners of previously closed sites where the available data suggest that trichloroethylene (TCE) levels may be problematic. Back in June of 2014, MassDEP promulgated rules updating its standards to reflect the most recent USEPA toxicity values. MassDEP updated its imminent hazard standards for TCE exposure in indoor air and simultaneously updated its MCP Method 1 soil and groundwater standards and reportable concentrations to reflect the new values.… More