Audit, Compliance and Risk Blog

On September 8, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States” (WOTUS) which is a critical but undefined term in the Clean Water Act (CWA). As I’ve discussed repeatedly, the agencies, potentially regulated entities, and others have disputed possible definitions for decades. Most recently, in May 2023 the US Supreme Court adjusted its own precedent to over-rule definitions adopted by EPA and the Corps in January 2023 (I discussed the January rules HERE, and the Supreme Court decision (Sackett v. EPA) HERE). The rest of this note identifies the newest regulatory (re)definitions, adopted to conform the agencies’ regulations to the latest Supreme Court guidance restricting the types of wetlands potentially considered to be WOTUS subject to CWA regulation.

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In recent years, governments around the world have extended solid waste management efforts to support—and in some cases require—recycling and resource recovery efforts to divert more solid wastes from landfills, and to substitute reused materials or raw materials. Increasingly, specialized stewardship programs target particular types of hazardous wastes – used oils, spent batteries, etc. – the national advocacy group Product Stewardship Institute identifies more than 120 such programs spread among 34 US states (I introduced these efforts HERE). Maine already has a number of these programs.

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Solid waste management has come a long way since enactment of the Solid Waste Disposal Act (SWDA) of 1965 to address the national “landfill crisis.” The Environmental Protection Agency (EPA) applies SWDA authority to adopt landfill standards, which are administered by state and local governments. EPA also empowers these state and local governments to do more, not just through additional disposal standards, but through expanded requirements for recycling and resource recovery efforts designed to keep more solid wastes out of landfills. In addition, extended management programs impose “product stewardship” and “extended producer responsibility” on manufacturers. This note discusses these introduces these ideas, and summarizes the extent of state programs that apply them.

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The many overlaps and disjunctions in environmental protection laws mean that many situations are potentially subject to multiple laws and their associated enforcement provisions. On May 24, the US Supreme Court decided the latest incarnation in a long-running dispute between the federal government and the territory of Guam over contamination at a landfill, which included an earlier round involving the Clean Water Act (CWA) and the latest round involving the Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)) (Guam v. United States). The court decided that a 2004 settlement in a CWA enforcement case did not – and could not – affect Guam’s latest search for financial contributions to cleanup under CERCLA. This decision provides not just specific clarification of the relationship between two CWA and CERCLA cost recovery provisions, but also a general reminder about the need to craft settlements carefully.

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