Supreme Court strengthens FOIA confidential information protection

Companies are often required to submit information to federal environmental regulatory agencies, some of which may be considered confidential and proprietary. While FOIA contains provisions protecting confidential information from disclosure, courts interpreting that exception have applied a “competitive harm” test requiring parties opposing disclosure to prove not only that the information is confidential but also that they will suffer substantial competitive harm if the information is disclosed.  In a 6-3 decision, Food Marketing Institute v. Argus Leader, the Supreme Court rejected that test.  This holding reduces the burden on companies attempting to protect confidential business information from FOIA disclosure.

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Chris Smith
EPA Seeks Comment on Potential Cost/Benefit Rulemaking

On June 8, 2018, EPA announced an advanced notice of proposed rulemaking on how the agency considers the costs and benefits of environmental regulations.  Since 1981, Executive Orders have required EPA to assess the costs and benefits of its significant regulatory actions.  In addition, many environmental statutes require or allow consideration of costs and benefits, albeit with differing standards and terminology.  The statutes leave the specifics of how costs and benefits are considered to the agency.

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Chris Smith
Environmental Auditing and Internal Compliance Investigations

Complying with environmental laws is hard.  The regulations and permits are complex, and very often the regulated entity is unsure of its compliance status until after an inspection.  What if there was a way to investigate and resolve potential compliance issues under the protection of evidentiary privilege and without paying significant administrative penalties? A privileged environmental audit may allow just that.

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Chris Smith
EPA reverses "once-in-always-in" MACT Policy

On January 25 EPA issued a Policy reversing its May 1995 memorandum, “Potential to Emit for MACT Standards – Guidance on Timing Issues” by John Seitz, Director, Office of Air Quality Planning and Standards (the “Seitz Memo”).  The Seitz Memo established EPA’s policy that requiring any facility that was a major source of hazardous air pollutants (HAP) on the first compliance date of an applicable MACT standard to permanently comply with that MACT standard.  It was commonly called EPA’s “once-in-always-in” MACT policy.

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Becky Jolin