Environmental Compliance

By Rebecca A. Davis and Jeryl L. Olson

Seyfarth Synopsis:  Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL).  This is the largest number of deletions in one year since 2005. 

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018.  Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway.  Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures.  Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

The HRS, the principal mechanism EPA uses to determine whether a site should be placed on the NPL, traditionally ranked sites under four pathways:  groundwater migration, surface water migration, soil exposure and air migration.  In other words, subsurface intrusion historically was not a separate basis for scoring purposes on the HRS, but was instead addressed as part of the remediation of a Superfund site.  On January 9, 2017, the rule to add subsurface intrusion as a component to the HRS was published in the Federal Register, and the final rule went into effect on May 22, 2017.  See our previous blog about it, EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System.

The first of the two sites listed under the new HRS guidance, the Rockwell International Wheel & Trim site in Mississippi, was a former wheel cover and chrome-plating facility.  Although other traditional pathways were present, including soil and groundwater impacts from volatile organic compounds (VOCs), the EPA elected to score the site under the HRS only on the subsurface intrusion component.  The EPA determined that there was likely a complete pathway from the subsurface source of VOCs to workers in buildings overlying the soil and groundwater impacts.  This assumption was confirmed by indoor air sampling that revealed the presence of trichloroethylene and dichloroethylene in air in the buildings.

The second site, the Delfasco Forge site in Grand Prairie, Texas, is the location of a former munitions and forger operation that operated from the 1950s to 1998.  The site is contaminated with trichloroethylene (TCE) both in soil, and groundwater.  In 2008, EPA conducted a vapor intrusion investigation that included the sampling of sub-slabs, crawl spaces and indoor air of 16 homes and two commercial structures.  Ten of the 18 structures had measurable levels of TCE in indoor air.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.  Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..”  The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”  The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.”  Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Corps) have recently proposed a “clear, understandable, and implementable definition of ‘waters of the United States’ [(WOTUS)] that clarifies federal authority under the Clean Water Act.”

Concerning the new draft proposed rule, Acting Administrator Andrew Wheeler tweeted out that “our redefinition of the Waters of the US proposal would replace the Obama 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners certainty so they can manage their natural resources & grow local economies.”  84 Fed. Reg. 4154 (February 14, 2019).  The EPA noted that unlike the Obama administration’s 2015 definition of WOTUS, the new proposal contains a “straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.”

This proposal, the Agencies assert, is the second step in the two-step process to review and revise the definition of WOTUS consistent with President Trump’s February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.

The proposed rule is intended to provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not.  The practical effect of the proposal is to remove from Federal authority “waters” that are not directly adjacent to a river, stream or lake that is traditionally understood as under the jurisdiction of the CWA.  The proposal rejects the “substantial nexus” approach that resulted from Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715 (2006).  As a result, many wetlands or ephemeral streams, although hydrologically connected to a traditional CWA-regulated water, would no longer be regulated.

Under the proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.  The proposal also details what are not WOTUS, such as “features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.”

Here is an Agency graphical depiction of the rule provisions:

EPA Twitter image post, December 12, 2018.

The Agencies had received written pre-proposal recommendations and received more than 6,000 recommendations that were considered in developing the proposal.  Public comments on the proposal will be accepted for 60 days after publication in the Federal Register.  EPA and the Corps intend to also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

Our prior blogs provide more detail regarding the definition of WOTUS.  See for instance EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water ActProposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: New Illinois Office of State Fire Marshall (“OSFM”) regulations, (42 Ill. Reg. 10476, 10662-667, June 15, 2018, effective October 13, 2018), require that periodic operation and maintenance include recorded “walkthrough inspections” for underground storage tank (UST) facilities. 

Under new OSFM rules, each Class A Operator, who has the primary responsibility of operating and maintaining the UST system, and Class B Operator, designated with day-to-day aspects of operating, maintaining and recordkeeping for UST systems “… shall perform walkthrough inspections of each storage tank system for which he or she is designated, and shall record the results of each inspection on a checklist to be maintained with the facility records.”  The walkthrough inspection requirement took effect on October 13, 2018, and replaces the previous requirement to conduct quarterly equipment inspections.  The rules under Part 35, Section 176.655 of the Illinois Administrative Code, require that at a minimum, a walkthrough inspection shall be conducted at least once every 30 days and include inspection of:

  • Release detection methods, including monitoring systems and all associated sensors;
  • The integrity of spill and overfill prevention and spill containment equipment and manholes;
  • Dispensers, hoses, breakaways and hardware for leaks and damage; and
  • Operational status of impressed current cathodic protection systems, including checking and recording that the power is on and that the voltage, amps and hour meter have the appropriate readings required under Section 175.510(f), with a log entry that shows date of inspection, initials of inspector, hour, volt and amp readings, and power on verification.

In addition, at least once per year the Operator shall inspect:

  • All containment sumps by: (i) checking for visual damage to the sumps, covers and lids; (ii) checking for the presence of regulated substances or any indication that a release may have occurred; and (iii) checking that the sumps and the interstitial areas for any double-walled sumps with interstitial monitoring are free of water, product and debris;
  • All UST equipment including emergency stops for the presence or absence of visible damage to any UST component;
  • Emergency stops to document they have been tested by the owner/operator or a contractor for interconnection and pump shutdown;
  • Shear valves to document they have been visually inspected by the owner/operator or a contractor;
  • All required signs to ensure they are fully visible and all communication systems in place and operational;
  • All daily, 30-day, monthly and annual inspections, testing, reporting and records required under 41 Ill. Adm. Code 174, 175 and 176; and
  • If applicable, the tank gauge stick or groundwater bailers, for operability and serviceability (manual tank gauging or groundwater monitoring).

To assist owners and operators with rule compliance and recordkeeping requirements, the OSFM provides a UST Operations and Maintenance Plan Template Form (OSFM O&M Plan Template).  As noted in the OSFM O&M Plan Template and in the rules, each Class A or Class B Operator “shall perform walkthrough inspections” of each storage tank system for which they are designated and shall record the results of each inspection “on a checklist to be maintained with the facility records.”  Specific 30 day inspection report forms and annual walkthrough inspection report forms are also available from the OSFM.  The OSFM also provides FAQs For Class A, B, and C Operator Training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Jay W. Connolly, Joseph J. Orzano, and Aaron Belzer

Seyfarth Synopsis:  Join us on Tuesday, September 25th, for this timely California Proposition 65 webinar that will  provide an overview of the updated warning regulations.  The webinar will also discuss the potential impact of the new regulations on enforcement trends.  Lastly, the webinar will provide strategies for businesses seeking to become compliant, as well as those looking to evaluate existing compliance plans based on the latest Proposition 65 developments.

California’s Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to Californians before knowingly and intentionally exposing them to known carcinogens or reproductive toxins.  After a two-year grace period, substantial modifications to the regulations for providing clear and reasonable warnings under Proposition 65 took effect on August 30, 2018.

There is no cost to attend but registration is required.

The webinar will take place at:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Note that CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency’s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.

The U.S. Environmental Protection Agency’s (USEPA) current regulations implementing Clean Water Act (CWA) section 404(c) allow the Agency to veto at any time during the permitting process a permit issued by the U.S. Army Corps of Engineers (USACE) under CWA section 404(a) that allows for the discharge of dredged or fill material at permitted sites.  USEPA has historically taken the position that it can preemptively veto a permit before, during or after a 404(a) application is filed or a permit is issued.

In a memorandum last week, USEPA Administrator E. Scott Pruitt directed the Office of Water to develop a proposed rulemaking that would end USEPA’s preemptory and retroactive 404(c) veto power. Administrator Pruitt said that it was his goal to refocus EPA “on its core mission of protecting public health and the environment in a way that is fair and consistent with due process.”  He continued that EPA “must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

Administrator Pruitt indicated that the “regulations were last revised nearly 40 years ago“ and “EPA’s regulations should reflect today’s permitting process and modern-day methods and protections, including the robust existing processes under the National Environmental Policy Act.”

Accordingly, the memo directs USEPA’s Office of Water to develop a proposed rulemaking that would consider the following changes:

  • Eliminating the USEPA authority to initiate the section 404(c) process before a USACE 404(a) permit application has been filed with the USACE or a state, otherwise known as the “preemptive veto.”
  • Eliminating the authority of USEPA to initiate the section 404(c) veto process after a USACE 404(a) permit has been issued by the USACE or a state, otherwise known as the “retroactive veto.”
  • Requiring a Regional Administrator to obtain approval from USEPA Headquarters before initiating the section 404(c) veto process over a USACE 404(a) permit.
  • Requiring a Regional Administrator to review and consider the findings of an Environmental Assessment or Environmental Impact Statement prepared by the USACE before preparing and publishing notice of a proposed determination.
  • Requiring USEPA to publish and seek public comment on a final USEPA determination before such a determination takes effect.

We have previously blogged on related wetlands topics, including Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial Review, Sackett v. EPA: Supreme Court Decides Unanimously In Favor Of Landowners, and New Wetlands Definition.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. Olson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: EPA announces its proposal to streamline the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system.

The U.S. Environmental Protection Agency has issued a proposed rule that is intended to simplify the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system under 40 CFR Part 273.  83 Fed. Reg. 11654 (March 16, 2018).  Some states, including California, Colorado, Minnesota, New Mexico, Texas, and Utah have already added aerosol cans to their Universal Waste lists. Adding aerosol cans to the list of Universal Wastes would ease the RCRA burden on generators in the two top economic sectors with the largest percentage of potentially affected entities, the retail trade industry and manufacturing.

Currently the U.S. EPA regulates nonempty aerosol cans as RCRA hazardous wastes in the same manner as other hazardous wastes; that is, hazardous waste aerosol cans are basically subject to the same requirements as drums of hazardous waste, including limitations on accumulation time  and volume, manifesting, disposal requirements, employee training, and response to releases.  That is, aerosol cans are regulated as hazardous waste when discarded, because propellant in the cans is flammable (i.e., a characteristic hazardous waste) and/or the contents of the cans contain P- or U- listed chemicals regulated as hazardous wastes. Aerosol cans can be excluded from the definition of hazardous waste, but only if they meet certain strict requirements.

Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste mercury lamps are already regulated as Universal Wastes. In general, materials managed as universal waste can be stored for 1 year or longer, and do not require a manifest when shipped, provided they are properly labeled, packaged and stored. Universal wastes also do not need to be counted toward a hazardous waste generator’s inventory for the purpose of determining whether the generator is classified as a very small quantity generator, small quantity generator, or large quantity generator.

While the rule is expected to be relief to the regulated community, the proposed rule raises nearly as many questions as it answers.  For instance, under the proposed rule, an aerosol can is defined as “an intact container in which gas under pressure is used to aerate and dispense any material through a valve in the form of a spray or foam.” It remains to be seen, therefore, whether this proposed definition would include items such as cans that dispense product without aerating (e.g. shaving gel).  Importantly, the proposed rule also creates uncertainty about when an aerosol can is “intact” or is “empty.”  This is a key issue because aerosol cans meeting the definition of “empty” are to be excluded from the Universal Waste rule, and the cans themselves would not be hazardous if recycled.

Currently, punctured, empty aerosol cans that are recycled are exempt from RCRA regulation if the puncturing is performed as part of a recycling process, and many companies have invested in can puncturing equipment to render aerosol cans “RCRA-empty” and thus, the cans (not the “drained contents”) are considered exempt from hazardous waste rules.  As suggested above, however, in the future, where puncturing and draining would render cans empty, they would not be subject to Universal Waste rules.  The issue of whether “puncturing” by the generator (versus the waste handler) is hazardous waste treatment can vary from state to state, and the proposed rule does not provide clarity for generators.

We will continue to monitor development of the proposed rule.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation, and a host of states, including New York and California have brought lawsuits against the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) in response to their final rule to delay the applicability date for the WOTUS Rule.  States of New York et al. v. USEPA and Corps (State Litigation), No. 18-cv-1030 (S.D. NY February 6, 2018), and NRDC v USEPA and Corps (Association Litigation), No 18-cv-1048 (S.D. NY February 6, 2018).

As we noted in previous blogs, the WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments. In the most recent chapter of this ongoing saga, the Agencies adopted an applicability rule to extend the applicability date of the 2015 WOTUS Rule to February 6, 2020. USEPA claimed that the extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.” The Plaintiffs refer to this extension as “the Suspension Rule.”

The State Litigation seeks “a declaration that the Suspension Rule is unlawful and an order vacating it” as well as a declaration that the Agencies’ action was arbitrary and capricious. The States argue, among other things, that the Clean Water Act does not give the Agencies authority to suspend a Rule when it has already become effective.

The Association Litigation seeks a ruling that “the suspension of the Clean Water Rule for two years is…‘arbitrary,’ ‘capricious,’ an ‘abuse of discretion,’ and ‘not in accordance with law’ under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).” Additionally, the Associations seek a ruling that “the suspension of the Clean Water Rule for two years was…promulgated in violation of the Due Process Clause of the U.S. Constitution, and was ‘without observance of procedure required by law’ and ‘contrary to constitutional right’ in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(B), (D).”

We will keep you up to date as to the progression of the litigation and any important briefing or rulings that come out of it.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) finalized a rule moving the applicability date to the Obama-era Waters of the United States (WOTUS) rule to February 6, 2020, two years in the future. 83 Fed. Reg. 5200 (Feb. 6, 2018).

The WOTUS rulemaking has been frought with controversy and has generated well over 1-million public comments.

We have previously blogged on the WOTUS rulemaking. See Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The now-final applicability rule extends the applicability date of the Obama-era 2015 WOTUS Rule to February 6, 2020, two years beyond today’s publication of the final rule in the Federal Register. USEPA claims that this extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.”

USEPA also reiterated that the applicability rule is separate from the ongoing two-step process the Agencies are currently undertaking to reconsider and potentially revise the 2015 WOTUS Rule. The comment period for Step 1 of the reconsideration closed in September, 2017, receiving just under 700,000 comments. Meanwhile, the agencies are still reviewing the 1.1+ million comments received from the public for the 2015 Obama-era WOTUS Rule. USEPA and the Corps are also in the process of holding “listening sessions” with stakeholders to assist the Agencies in developing a proposed Step 2 rule that would again revise the definition of “waters of the United States.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.

In yet another move providing relief to industry from federal enforcement, the EPA Office of Enforcement and Compliance Assurance (OECA) last week issued an Interim Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (January 22, 2018) (Guidance).

The Guidance, issued by OECA Assistant Administrator Susan Parker Bodine to Regional Administrators, suggests, with respect to enforcement cases,  a more collaborative partnership between the EPA and states with authorized environmental programs.  It applies to all EPA compliance assurance activities, and Bodine anticipates it will  “develop principles and best practices for State and EPA collaboration in inspections and enforcement, work planning and implementation, National Enforcement Initiatives, and outcome and performance measurement.”

The Guidance sets out the expectation that EPA Regional Offices and their respective states will henceforth work together to achieve environmental compliance rather than EPA repeatedly auditing state level efforts (or from the standpoint of regulated industry, interfering with them).  The Guidance calls for the Region and State to discuss and share information including lists of planned inspections as well as an understanding concerning when a facility will be informed of an inspection in advance.  For any planned program audits, “EPA findings should be considered preliminary until the State has had an opportunity to review and respond.”  Except in emergency situations, EPA aims to allow states to address a deficiency prior to being subject to enforcement action.

Under the Guidance, EPA recognizes that States are given “primacy” in authorized programs.  “With respect to inspections and enforcement, EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs….”  EPA expects to “step in”,  in limited circumstances where actions require specialized EPA equipment and/or expertise, or where noncompliance issues need to be tackled at an interstate level.  Generally, “the Region should defer to the State except where the EPA believes that some EPA involvement is warranted.”

While the notion of cooperative federalism grants states leeway to decide how best to enforce environmental programs, allowing them to consider the unique circumstances and stakeholder interests in their state, the reality is the Guidance places a heavy burden on states to take on more responsibilities while dealing with their own budgetary constraints.  “Cooperative federalism” presumes states have adequate financial support to implement complex environmental requirements.

OECA expects to evaluate the success of the Guidance by requesting that Regions provide a progress report by September 28, 2018.  Unless the new approach is coupled with adequate financial support from the federal government to assist states in implementing complex and broad federal requirements, the collaborative partnership that the Guidance aims to achieve may be strained from inception.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.