On January 10, 2024, the U.S. Environmental Protection Agency (EPA), U.S. Department of Justice, and the California Air Resources Board (ARB) filed a settlement agreement with Cummins, Inc. covering nearly one million Ram vehicles for which Cummins supplied diesel engines with illegal software-based “defeat devices” that produced misleading emission certification results compared with significantly higher emissions while the vehicles are in actual use. Cummins will pay the largest CAA penalties ever ($1,675 million in federal and state penalties), will fund environmental mitigation projects to compensate for excess nitrogen oxides (NOx) emissions ($175 million), and will also recall 630,000 vehicles (model years 2013-2019) to remove the defeat devices (estimated costs $150 million, including warranty extensions). Cummins will also implement corporate governance, organizational, and technical process reforms to minimize the likelihood of future violations.Read More
Audit, Compliance and Risk Blog
Many laws provide for civil – and sometimes even criminal – penalties for noncompliance. New legislation typically sets penalty levels (“XXX dollars per day of violation” for example), at levels intended to provide meaningful deterrence and punishment for noncompliance. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties reduce incentives for compliance, most U.S. federal agencies are required to make annual “cost of living” adjustments to maximum available civil penalty levels (criminal penalties are not affected).Read More
Federal laws (commonly referred to as RCRA, after the Resource Conservation and Recovery Act of 1976) provide comprehensive management requirements for parties involved in hazardous waste management, from “cradle to grave” covering generators, transporters, and offsite management facilities. Among these many provisions are requirements that “large quantity generators (LQGs)” submit biennial reports to the Environmental Protection Agency (EPA) or delegated states in March of every even-numbered year. March 2024 is the next such deadline, so now is a good time to review biennial report requirements to ensure compliance at qualifying facilities.Read More
On October 31, 2023 the US Environmental Protection Agency (EPA) tightened its reporting requirements for per- and polyfluoroalkyl substances (PFAS) – frequently called ‘forever chemicals” because they biodegrade very slowly – under its Toxic Release Inventory (TRI) program. These changes finalize a proposal issued in (which I wrote about HERE), and reflect EPA’s agency-wide efforts to tighten controls on PFASs proposed in December 2022 (I wrote about these efforts HERE). The new TRI revisions apply to reports beginning in calendar year 2024. The remainder of this note summarizes these changes.
On October 19, 2023, the US Environmental Protection Agency (EPA) proposed to establish requirements for the management of hydrofluorocarbons (HFCs) potentially released from equipment during maintenance or other services, and manage spent HFCs.. These rules support US efforts to implement the 2016 Kigali Amendment to the United Nations-sponsored Montreal Protocol on Substances that Deplete the Ozone Layer (which I wrote about HERE), and codified in the December 2020 coronavirus relief bill (American Innovation and Manufacturing Act of 2020 (AIM Act; which included dozens of unrelated provisions within its 5,593 pages). EPA adopted its over-arching HFC phase-down rules in September 2021 (I wrote about them HERE), and continues to adjust and refine their requirements. The remainder of this note summarizes EPA’s new proposal, which would impose requirements using authority under the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA).Read More
On September 13, the US Environmental Protection Agency (EPA) added to its website a portal with information about the agency’s many regulatory, research and informational efforts addressing carcinogen hazards and controls. This information supports the Biden Administration’s “Cancer Moonshot.” EPA undertakes carcinogen control efforts by applying legal authority under many of the environmental protection statutes it administers. The remainder of this note summarizes the agency efforts identified on EPA’s new web portal.Read More
Several national laws empower the US Environmental Protection Agency (EPA) to set standards for the cleanup of contamination that resulted from accidental or deliberate releases of chemicals and other materials onto land or into water. EPA’s actions include direct requirements for cleanup by responsible parties, and also inform other parties’ evaluations of if and how to prepare contaminated areas for reuse – often referred to as “brownfields” since they’re assumed to be dirtier than never-used “greenfields.” The remainder of this note discusses EPA’s 73 page “Climate Smart Brownfields Manual,” issued by the agency in 2021Read More
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.Read More
On August 17, the US Environmental Protection Agency (EPA) issued a memorandum announcing its National Enforcement and Compliance Initiatives and continuing enforcement priorities for the upcoming fiscal years 2024-2027 (NECI memo). This announcement specifies existing initiatives that EPA will extend, and additional new ones. The NECI memo explains that EPA selected its priorities based on the following three criteria:
- the need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities
- a focus on areas where federal enforcement authorities, resources, and/or expertise are needed to hold polluters accountable and promote a level playing field
- alignment with EPA’s Strategic Plan.
The remainder of this note summarizes the enforcement priorities expressed in the NECI memo.Read More
Lead and lead-containing materials are among the longest-used materials in construction and industry. Lead has been used in commercial, residential, and ceramic paint; in electric batteries and other devices; as a gasoline additive; for weighting; and other purposes. It also has been recognized as toxic to human health and the environment at least since the Romans, although understanding of the extent and severity of lead hazards has improved greatly in recent decades. Accordingly, environmental, occupational and public health agencies have progressively tightened standards to reduce lead exposures. On August 1, 2023, the Environmental Protection Agency (EPA) proposed to tighten post-remediation clearance levels as low as “non-detect.” The rest of this note discusses EPA’s latest proposal, and provides some context and background.Read More