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On August 29, 2023, the Environmental Protection Agency (EPA) announced its final Waters of the United States (WOTUS) rule.  The new WOTUS rule makes major changes to clarify which wetlands are protected under the Clean Water Act (CWA).  The new WOTUS rule is a direct response to the Supreme Court’s Sackett v. EPA decision, which

The U.S. Securities and Exchange Commission is requiring large business to report on their (indirect) Scope 3 emissions. This reporting obligation comes in addition to company reporting on the carbon impact of its own activities and the power it consumes.


Key takeaways

A company’s reporting obligation would depend on a number of specific factors, which

On Wednesday April 6, 2022, in a 5-4 vote, the U.S. Supreme Court justices stayed a California district court’s October 21, 2021 decision to vacate the Section 401 Water Quality Certification Rule (401 WQC Rule).  The U.S. Environmental Protection Agency (EPA) had requested that the district court remand the rule, saying it was planning

During 2021, the U.S. Environmental Protection Agency (EPA) collected discharge data for PFAS as part of its Multi-Industry PFAS Study.  The purpose behind the study was to identify facilities producing or using PFAS, look at their wastewater characteristics, estimate PFAS in their discharges, and identify control practices and treatment options.  As part of the study, EPA collected data from various EPA data sets and obtained information from other federal agencies (the U.S. Department of Transportation, Federal Aviation Administration (FAA), U.S. Department of Health and Human Services, and the Food and Drug Administration), states and EPA regions, as well as information from industrial users.  After EPA collected its data, it categorically broke down the results of its study into the following groups:

  1. Organic chemicals, plastics, and synthetic fibers (OCPSF)
  2. Metal finishing
  3. Pulp, paper, and paperboard
  4. Textile mills
  5. Commercial airports

The information collected by EPA during its study will be used to further identify companies and facilities that manufacture, import, or process PFAS.Continue Reading EPA PFAS testing targeted industry and will now look to public water systems

On November 4, 2021, the Army Corps of Engineers (ACOE) announced that it is pausing all requests for coverage under 12 nationwide permits (NWPs) issued earlier this year, including widely used permits for utility and oil and gas projects, among others.   The announcement followed a California district court’s decision vacating the Section 401 Water Quality Certification Rule (2020 401 WQC Rule) adopted by the Trump Administration in 2020.  Important questions remain about how ACOE intends to proceed while coverage is paused.

Section 404 of the Clean Water Act (CWA) authorizes the ACOE to regulate the discharge of dredged and/or fill material into waters of the U.S.  The CWA also requires that any person applying for a Section 404 permit also obtain a Section 401 Water Quality Certification (401 WQC) from the state, confirming that the discharge of fill materials will be in compliance with applicable water quality standards.  States must also issue 401 WQCs for all activities occurring in their state per a NWP.

On January 5, 2021 ACOE released the final version of a rule revamping certain NWPs issued pursuant to Section 404.  NWP 12 (as it existed prior to January 2021) was a general permit covering a range of activities such as utility line installation, development projects, road crossings, etc.  The January rule reissued and modified 12 NWPs and issued four new NWPs, following an April 2020 decision by the U.S. District Court for the District of Montana vacating a prior version of NWP 12These permits include:Continue Reading The U.S. Army Corps of Engineers pauses certain Section 404 nationwide permits

Using his Presidential platform, Joe Biden announced his Build Back Better Plan, “a national effort aimed at creating the jobs we need to build a modern, sustainable infrastructure now and deliver an equitable clean energy future.” As part of this plan, Biden intends to make a $2 trillion accelerated investment to set the United States

New Jersey’s Environmental Justice Bill (EJ Bill) applies to Facilities located in Overburdened Communities (OBC). N.J. Stat. § 13:1D-157 – 13:1D-161.  A Facility includes any: 1. Major source of air pollution; 2. Resource recovery facility or incinerator; 3. Sludge processing facility, combustor, or incinerator; 4. Sewage treatment plant with a capacity of more than 50 million gallons per day; 5. Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; 6. Scrap metal facility; 7. Landfill; or 8. Medical waste incinerator.   An OBC is one in which: 1. At least 35 percent of the households qualify as low-income households; 2. At least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or 3. At least 40 percent of the households have limited English proficiency.  The New Jersey Department of Environmental Protection (NJDEP) has compiled a list of overburdened communities.

If a Facility is located in an OBC, the EJ Bill requires that when the Facility submits an application for a permit for a new Facility, an expansion of an existing Facility, or an application for renewal of an existing Facility’s major source permit, the Facility must:

  1. Prepare an environmental justice impact statement (EJIS) to assess the potential environmental and public health stressors associated with the application;
  2. Transmit the EJIS at least 60 days in advance of the public hearing to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located; and
  3. Organize and conduct a public hearing in the OBC. The applicant must publish a notice of the public hearing in at least two newspapers circulating within the OBC (including one non-English language newspaper, if applicable), not less than 60 days prior to the public hearing.  The permit applicant shall provide a copy of the notice to the NJDEP and the NJDEP will publish the notice on its website.  The notice shall include the date, time, and location of the public hearing, a description of the proposed new or expanded Facility or existing major source, as applicable, a map indicating the location of the Facility, a brief summary of the EJIS, information on how an interested person may review a copy of the complete EJIS, an address for the submittal of written comments to the permit applicant, and any other information deemed appropriate by NJDEP.  At least 60 days prior to the public hearing, the notice shall be sent to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located.  At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or expanded facility, or existing major source, as applicable, and the potential environmental and public health stressors associated with the Facility. The permit applicant shall accept written and oral comments from any interested party, and provided an opportunity for meaningful public participation at the public hearing. The permit applicant shall transcribe the public hearing and, no later than 10 days after the public hearing, submit the transcript along with any written comments received, to NJDEP. Following the public hearing, NJDEP shall consider the testimony presented and any written comments received, and evaluate the issuance of, or conditions to, the permit, as necessary in order to avoid or reduce the adverse environmental or public health stressors affecting the OBC.

Continue Reading New Jersey’s Environmental Justice Bill and its effect on Title V facilities

Reed Smith’s U.S. based environmental team recently held a CLE webinar on what US environmental, health and safety legal and regulatory changes we can expect in 2021.  The webinar provided an insightful discussion on environmental policy and topics including:

  • Environmental Policy With Biden Win: Anticipating new federal regulation and enforcement actions
  • United States Supreme Court: