News

On June 2nd, the United States Environmental Protection Agency (EPA) published its Notice of Intent to Reconsider and Revise the Section 401 Certification Rule under the Clean Water Act (CWA). The Section 401 Certification Rule was designed to give states and authorized tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States if they determined that a project would have an adverse impact on their waters. In 2020, the EPA issued a revision to the Certification Rule which EPA described as establishing procedures that promote: Consistent implementation of Section 401 of the Clean Water Act; andRegulatory certainty in the federal licensing and permitting process. However, many states and tribes feel that the rule changes issued by the EPA in 2020 limit states’ authority to protect their waters because the 2020 Rule changes made it impossible for a state to block a water permit for a project for any reason other than direct…

Blackstone has assisted multiple clients with successful CELR applications. Properties have included commercial sites, former gas stations, and former manufacturing facilities. For one client, a Phase I ESA identified the possible presence of a historical gas station on the property in the early 1960s, and a subsequent Phase II ESA confirmed the presence of hydrocarbon impacts in soil and groundwater above residential risk-based concentrations.  The liability release provided by the CELR obtained for this site allowed the property transaction to take place. (more…)

The U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA) issued Advisory Bulletin 2019-0087 in April of 2019.  The advisory bulletin was issued to remind owners and operators of gas and hazardous liquid pipelines that earth movement, particularly in variable, steep, and rugged terrain and with varied geological subsurface conditions, can pose a threat to the integrity of a pipeline if those threats are not mitigated. (more…)

On April 21, 2020 the EPA published the final Waters of the United States (WOTUS) rule in the Federal Register. Blackstone previously provided a summary of the finalized rule in a February 18, 2020 update. As discussed in our February WOTUS update, the new rule eliminates Clean Water Act protections for more than 18% of our streams and a majority of the nation's wetlands. (more…)

On April 15, 2020, the U.S. District Court for Montana vacated the U.S. Army Corps of Engineers (USACE) Nationwide Permit 12 (NWP 12). Specifically, the case involved the challenge by the Northern Plains Resource Council (plaintiffs) to the USACE’s authorization of the use of NWP 12 to permit the discharge of dredged or fill material to waters of the U.S. in connection with the construction of TC Energy’s Keystone Pipeline. (more…)

On May 19, 2020, the U.S. Environmental Protection Agency (EPA) took the next step to implement an important per- and polyfluoroalkyl substances (PFAS) requirement of the National Defense Authorization Act (NDAA). The NDAA added 172 PFAS to the list of chemicals required to be reported to the Toxics Release Inventory (TRI) and established a 100-pound reporting threshold for these substances. (more…)

On February 20, 2020, the EPA announced it is issuing a preliminary regulatory determination for public comment to set an enforceable drinking water standard for two of the most common per and poly-fluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). (more…)

On January 23, 2020 the United States Environmental Protection Agency and United States Corps of Engineers announced the finalization of a new rule addressing the Clean Water Act definition of Waters of the United States (“WOTUS”). The definition of WOTUS is considered to be one of the three critical jurisdictional terms in the Clean Water Act. It is also important because it is relevant to non-National Pollution Discharge Elimination System programs including: (more…)

On January 10, 2020, the U.S. House of Representatives passed a bill targeting per- and polyfluoroalkyl substances (PFAS). The bill, H.R. 535, passed with a 247-159 vote. Despite the threat of a veto by President Donald Trump, 24 Republicans voted for the bill. (more…)

EPA published two actions related to the 2016 Emission Guidelines for Existing MSW Landfills in August 2019. The emission guidelines for MSW landfills (40 CFR Part 60, Subpart Cf) require existing landfills (constructed, reconstructed, or modified before July 17, 2014) that reach a landfill gas emissions rate of 34 megagrams of non-methane organic compounds (NMOC) or more per year or closed landfills that reach an emissions rate of 50 megagrams of NMOC or more per year to install a system to collect and control landfill gas. (more…)