We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
EPA Compliance Advisory Warns Against Making False and Misleading Product Claims Related to COVID-19
By: Frank Deveau, Chase Dressman, and Amber Lucci

Companies making false or misleading claims regarding a disinfectant’s effectiveness in killing SARS-CoV-2 (the coronavirus that causes COVID-19) will face enforcement according to the Environmental Protection Agency's (EPA) new May 2020 compliance advisory. Scrutiny of antimicrobial/disinfectant claims by EPA has never been higher, and both civil and criminal penalties for non-compliance can be severe.

In response to the COVID-19 pandemic and a surge in marketing of products claiming to be effective in treating SARS-CoV-2/COVID-19, EPA’s new compliance advisory reiterates that all disinfectant products claiming to kill viruses on surfaces must first be registered with EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and comply with FIFRA’s labeling and marketing requirements.

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Supreme Court Holds NPDES Permits Required for Discharges Through Groundwater
By: Erica Spitzig

The U.S. Supreme Court issued a long awaited decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, 590 U.S. (2020), holding that point source discharges of pollutants that are the “functional equivalent of a direct discharge” into navigable waters require a permit under the Clean Water Act’s national pollutant discharge elimination system (NPDES) program. The NPDES program exclusively regulates discharges of pollutants from point sources (defined as a confined, discrete conveyance) to navigable waters, and therefore whether a permit is required for pollutants that flow from a point through intermediary conveyances is a crucial question. The court’s opinion, authored by Justice Breyer and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh, who wrote a separate concurrence, threatens to upend well-settled expectations around NPDES permitting and the regulation of pollutants in groundwater in general.

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Montana Judge Revises NWP 12 Vacatur to Allow Non-Pipeline Projects to Proceed
By: Valerie Herring, Lauren Pockl, and Kodi Verhalen

On April 15, 2020, a federal district court judge in the District of Montana unexpectedly issued an order concluding that the U.S. Army Corps of Engineers’ (Corps) re-issuance of Nationwide Permit (NWP) 12 in 2017 for the Keystone XL Pipeline project was arbitrary and capricious and violated Section 7 of the Endangered Species Act (ESA). NWP 12 authorizes discharges of dredged or fill material into jurisdictional waters as a result of construction, maintenance, repair, and removal of utility infrastructure that otherwise would be prohibited by section 404 of the Clean Water Act. The court vacated the NWP 12 and remanded it to the Corps to complete consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the ESA. The court also specifically enjoined the Corps from “authorizing any dredge or fill activities” under NWP 12 until the consultation is complete.

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EPA Announces Publication of Final Navigable Waters Protection Rule
By: Erica Spitzig

On April 21, the United States Environmental Protection Agency (EPA) announced that the final step in the Trump Administration’s efforts to revise the definition of navigable waters under the Clean Water Act (CWA) is complete, and the final version of the Navigable Waters Protection Rule has been published in the Federal Register. The rule comes after a years-long battle over the Obama Administration’s 2015 Clean Water Rule that resulted in a regulatory patchwork in which the rule was in effect in only 22 states. The Trump Administration engaged in a two-step rule-making process to first repeal the Clean Water Rule and then issue this replacement rule.

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Holding Gives Additional Guidance on How to Satisfy “All Appropriate Inquiries”
By: Amber Lucci

A recent holding from the federal district court for the Southern District of Indiana now gives prospective purchasers of contaminated property even more reason to cross their t’s and dot their i’s when working towards claiming the bona fide prospective purchaser (BFPP) defense to Superfund liability based on a Phase I Environmental Site Assessment (ESA).

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