On May 18, the EPA published a wide-ranging series of proposed changes to the National Pollutant Discharge Elimination System ("NPDES") regulations. The proposed changes cover 15 topics in the following major categories: NPDES permit applications; the water quality-based permitting process; NPDES permit objection, documentation and process efficiencies; the vessels exclusion; and the Clean Water Act Section 401 certification process. Some of the more significant changes proposed by the EPA are discussed further below. The EPA is currently accepting comments from the regulated community on its proposed changes - all comments must be received by July 18, 2016.

With Congress in gridlock and partisanship reaching new heights, it was encouraging to see the U.S. Supreme Court's recent unanimous decision inU.S. Army Corps of Engineers v. Hawkes Co. Inc., where the court held that an approved jurisdictional determination by the U.S. Army Corps under the Clean Water Act was a final agency action subject to judicial review. Although the scope of the court's decision will likely be litigated in the future, it appears to provide for the first time an avenue for real estate developers, farmers and other property owners to determine with certainty if they must obtain a permit under the Clean Water Act when working in wetlands and other waters.

On June 3, a federal court in California entered a summary judgment ruling finding that two insurers had a duty to defend their insured against claims arising out of alleged releases of perchloroethylene (PCE) under their business auto policies because it was possible the releases resulted from the use of an automobile. Am. Guarantee & Liab. Ins. Co. v. Technichem, Inc., et al., Case No. 15-cv-03611-VC, 2016 U.S. Dist. LEXIS 72793, *7-10 (N.D. Cal. June 3, 2016). This ruling is important because it reminds policyholders to consider whether any environmental contamination claims they might be addressing were potentially attributable to their use of covered autos.

On May 13, the EPA published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act ("CERCLA") and Resource Conservation and Recovery Act ("RCRA") to National Emission Standards for Hazardous Air Pollutants ("NESHAP"). National Emission Standards for Hazardous Air Pollutants: Site Remediation, 81 Fed. Reg. 29821 (proposed May 13, 2016)(to be codified at 40 C.F.R. 60)("Proposed Rule"). The EPA is also proposing to remove the applicability requirement that a remediation site must be co-located with a facility that is regulated by other NESHAPs in order to be subject to the site remediation rule. These potential rule changes will subject a number of existing facilities to NESHAP rules although these facilities are currently exempt from NESHAP. The EPA is seeking comments on these potential changes by June 27, 2016.

On May 18, the 6th Circuit Court of Appeals resolved a Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") dispute between two agricultural-chemical distributors, Drexel Chemical Company ("Drexel") and Albaugh, Inc. ("Albaugh"). Drexel Chem. Co. v. Albaugh, Inc., Case Nos. 14-6340/6363 (Sixth Circuit, May 18, 2016). The dispute centered on Drexel's ability to recover certain "data compensation" costs from Albaugh pursuant to a contract between the two. The court ruled that according to the parties' contract only "data compensation" costs that were actually paid during the contract were recoverable. In contrast, costs incurred during the contract but not paid until after the contract's termination were not recoverable. Additionally, the court ruled that the contract's generic description of recoverable "costs" was not specific enough under Tennessee law to include attorney's fees and arbitration costs. The court's ruling demonstrates the importance of carefully describing the scope of "data compensation" costs in any FIFRA data cost-sharing contract.