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Category Archives: Environment

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U.S. EPA Issues Final Rule Overturning ‘Once In, Always In’ Policy for Major Sources of Hazardous Air Pollutants

Posted in Energy, Environment
This post provides an important update to our January 2018 Client Alert regarding U.S. EPA’s ‘Once In, Always In’ policy for major sources of hazardous air pollutants (HAPs). On October 1, 2020, U.S. EPA issued a final rule amending the general provisions of the National Emission Standards for Hazardous Air Pollutants (NESHAP), at 40 CFR… Continue Reading

D.C Circuit Court Stay’s U.S. EPA’s Amendments to New Source Performance Standards for Oil/Gas Industry

Posted in Energy, Environment
This post provides important updates to our August 17, 2020 post regarding U.S. EPA’s amendments to the 2012 and 2016 New Source Performance Standards (NSPS) for the Oil and Natural Gas Industry (40 CFR 60, Subpart OOOO and 40 CFR 60, Subpart OOOOa). First, U.S. EPA published the final amendments in the Final Register on… Continue Reading

The End of COVID-19 Noncompliance Protections

Posted in Environment
This post updates an earlier post outlining the USEPA’s and Ohio EPA’s COVID-19 enforcement policies. USEPA USEPA’s general policy to not seek penalties for compliance monitoring and reporting violations ended this week on August 31, 2020.  Violations that occur on and after September 1 are no longer protected by the “enforcement discretion” of the COVID-19… Continue Reading

Ohio’s New Brownfield Regulatory Reform Legislation

Posted in Environment
On June 16, 2020, Governor DeWine signed House Bill 168 into law.  The bill is designed to encourage brownfield redevelopment and reinvestment in the State of Ohio by enhancing liability protection to brownfield purchasers. Predominantly, the bill adopts from federal law an affirmative defense, the “Bona Fide Purchase Defense,” to purchasers who conduct appropriate environmental… Continue Reading

U.S. EPA Proposes Rule Governing Cost Benefit Analysis for Significant CAA Regulations

Posted in Energy, Environment
On June 4, 2020, U.S. EPA proposed a rule to improve the consistency and transparency of benefit cost analyses (BCAs) for all “significant” proposed and final regulations under the Clean Air Act (CAA). The proposed rule, developed in response to comments on U.S. EPA’s June 12, 2018 Advance Notice of Proposed Rulemaking and Administrator Wheeler’s… Continue Reading

U.S. EPA Finalizes Amendments to Rules Governing CWA 401 Water Quality Certification Process

Posted in Energy, Environment
On June 1, 2020, U.S. EPA finalized amendments to the rules governing the Clean Water Act (CWA) Section 401 water quality certification (WQC) process, which had not been updated since 1971. The final amendments establish a more robust framework for the WQC process which is intended, in large part, to ensure that certifying agencies take… Continue Reading

U.S. EPA and Army Corps Publish Final Navigable Waters Protection Rule

Posted in Energy, Environment
On April 21, 2020, U.S. EPA and the Army Corps of Engineers published the final Navigable Waters Protection Rule amending the definition of “Waters of the United States” (the “2020 WOTUS Rule”). Under the 2020 WOTUS Rule, four categories of jurisdictional WOTUS are subject to regulation under the Clean Water Act (CWA): 1. The territorial… Continue Reading

USEPA Releases Draft Guidance which would allow additional construction activities in advance of obtaining a pre-construction permit

Posted in Environment
On March 25, 2020, USEPA released draft guidance regarding its interpretation of “begin actual construction” under the regulations implementing the New Source Review (NSR) permitting program. Those regulations provide that “[n]o new major stationary source or major modification to which the requirements of paragraphs (j) through (r)(5) of this section apply shall begin actual construction… Continue Reading

New USEPA COVID-19 Enforcement Guidance Issued (Plus Similar State Policies Being Announced)

Posted in Environment
As an update to our previous post regarding COVID-19 and environmental compliance, new developments at the state and federal levels continue, especially with respect to the exercise of enforcement discretion. USEPA GUIDANCE Summary On March 26, 2020, USEPA issued a memorandum entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (the “COVID-19 Memorandum”). Through… Continue Reading

Thinking about delaying environmental compliance due to COVID-19? Think carefully!

Posted in Environment
As businesses across the United States confront the ongoing impact of the COVID-19 pandemic, the Vorys environmental team is ready to provide counsel and guidance on a number of potential issues.  As the situation continues to evolve day by day, we recommend carefully reviewing each of your facilities’ environmental-related permits, orders, and other compliance obligations,… Continue Reading

Proposed Amendments to NEPA Regulations

Posted in Energy, Environment
As discussed in an earlier post, found here, the Council of Environmental Quality (“CEQ”) recently published proposed amendments to update the procedural regulations used to implement the National Environmental Policy Act (“NEPA”). The proposed amendments were published in the Federal Register on January 10, 2020 and can be found here. Public comments on the proposed… Continue Reading

Proposed regulatory amendments published for the National Environmental Policy Act

Posted in Energy, Environment
The Council for Environmental Quality recently published proposed amendments to update the procedural regulations used to implement the National Environmental Policy Act (“NEPA”). The proposed amendments were published in the Federal Register on January 10, 2020 and can be found here. The main goal of NEPA is to assure that federal agencies adequately consider the… Continue Reading

U.S. EPA Redesignates Ohio Portion of Stubenville OH-WV SO2 Nonattainment Area

Posted in Environment
On November 29,2019, U.S. EPA issued a final rule redesignating the Ohio portion of the Stubenville Ohio-West Virginia nonattainment area from nonattainment to attainment of the 2010 SO2 National Ambient Air Quality Standards (NAAQS), pursuant to section 107(d)(3)(E) of the Clean Air Act. EPA determined that Ohio demonstrated that the area is attaining the SO2… Continue Reading

New USEPA Title V and NSR Guidance: “Adjacent” does actually mean “Adjacent”

Posted in Environment
On November 26, 2019, USEPA published a guidance memorandum “Interpreting ‘Adjacent’ for New Source Review and Title V Source Determinations in All Industries Other Than Oil and Gas” (the November 26 Guidance).  In the November 26 Guidance, USEPA updated its interpretation of the regulations governing the scope of a “stationary source” under the NSR and… Continue Reading

USEPA Proposes to Redesignate Columbus Area in Attainment of 2015 Ozone NAAQS

Posted in Environment
On July 3, 2019, USEPA issued a proposed rule finding the Columbus, Ohio area is attaining the 2015 ozone National Ambient Air Quality Standard (NAAQS). The Columbus area is currently designated as nonattainment for the 2015 ozone NAAQS. However, in response to Ohio EPA’s request for redesignation to attainment supported by monitoring data for 2016-2018,… Continue Reading

Ohio EPA Issues Draft Vapor Intrusion Guidance

Posted in Energy, Environment
On June 24, 2019, Ohio EPA issued a draft Vapor Intrusion Sampling and Evaluation Guidance (Guidance). The draft Guidance, which is intended to update the 2010 version of Ohio EPA’s Vapor Intrusion Guidance, is applicable to sites subject to CERCLA, RCRA, and Ohio Voluntary Action (VAP) oversight. Comments on the draft Guidance must be submitted… Continue Reading

Ohio H.B. 168 Creates Superfund-like Protections for Qualifying Purchasers of Brownfield Properties

Posted in Environment
The Ohio House of Representatives recently passed a bill (H.B. 168) that provides “bona fide prospective purchasers” (BFPPs) of brownfield properties with an affirmative defense against state lawsuits seeking to impose liability for the cleanup of such properties. To qualify for the liability protection as a BFPP under H.B. 168, a landowner must satisfy the… Continue Reading

U.S. EPA Finalizes New Owner Clean Air Act Audit Program for Oil and Natural Gas Sector

Posted in Energy, Environment
On March 29, 2019, U.S. EPA finalized a New Owner Clean Air Act (CAA) Audit Program for new owners of upstream oil and natural gas exploration and production facilities – i.e. well sites, tank batteries, and vapor control systems (the “Program”). The Program encourages new owners voluntarily to conduct a self-audit of newly acquired facilities,… Continue Reading

Sixth Circuit Holds Environmental Groups Lack Standing to Challenge Air Permits for NEXUS Pipeline Compressor Stations

Posted in Energy, Environment
On February 21, 2019, the Sixth Circuit Court of Appeals dismissed a petition for review of air permits issued by Ohio EPA for two compressor stations to be constructed along the NEXUS pipeline in Ohio. The Court dismissed the petition for review for lack of jurisdiction, holding the environmental groups that filed the petition for… Continue Reading

U.S. EPA Issues Comprehensive PFAS Action Plan

Posted in Environment
On February 14, 2019, U.S. EPA issued a comprehensive Action Plan for addressing Per- and Polyfluoroalkyl Substances (PFAS) in environmental media. The Action Plan, which was developed in response to significant public input received by EPA over the past year, describes EPA’s short- and long-term multi-media and multi-program approach for addressing PFAS. Notable activities that… Continue Reading

USEPA and Army Corps Propose New WOTUS Rule

Posted in Energy, Environment
On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow… Continue Reading