On September 22, the United States Fish and Wildlife Service (“FWS”) proposed the rusty patched bumble bee for listing as an endangered species under the Endangered Species Act (“ESA”). This action results from a 2013 petition and subsequent lawsuit filed by The Xerces Society for Invertebrate Conservation to list the rusty patched bumble bee as an endangered species.
Prior to the 1990s, the rusty patched bumble bee was widely distributed across 31 states and provinces, favoring native grasslands. Since the late 1990s, however, the number of populations fell by 91 percent. The species’ geographic distribution concurrently declined from 31 states and provinces to 13 states and provinces. FWS attributes this attrition to several factors, including pathogens, pesticides, habitat loss and climate change. [Read more →]
September 26, 2016 Comments Off on Fish and Wildlife Proposes to Add Rusty Patched Bumble Bee to Endangered Species List
From recent discussions with the US EPA, all indications are that the Hazardous Waste Generator Improvements Rule will be finalized any day now. Troutman Sanders’ Greg Blount and Karlie Webb will present a webinar update on the final rule shortly after publication. Please stay tuned!
September 23, 2016 Comments Off on The new Hazardous Waste Generator Improvement Rule is coming!
The EPA published a final rule on September 14, 2016 to once again revise its maximum achievable control technology (MACT) standard for boilers. In this latest revision, EPA responded to various requests for reconsideration of its “area source” boilers rule, the rule that applies only to boilers located at relatively minor emission sources. The most significant revision in this latest rulemaking involves changes to the definitions of “startup” and “shutdown” to mirror the similar revisions made in EPA’s other MACT rules. That is, the area source boiler rule will now define startup in two different ways, one of which allows a 4 hour window during which only work practice standards will apply in lieu of the otherwise applicable numeric emission limits. EPA also eliminated the affirmative defense provision for unavoidable malfunctions, which, until 2014, was the central component of EPA’s policy for addressing emissions resulting from malfunctions. However, in light of a recent D.C. Circuit decision rejecting the malfunction affirmative defense in another MACT standard, EPA has begun removing those provisions from its rules, so the decision to eliminate it from the area source boiler MACT is no surprise. The lack of an affirmative defense or any other provision to address malfunctions will now leave boiler owners vulnerable to penalties for emission exceedances even if due to unforeseeable and unpreventable malfunctions. As important as what the agency revised, however, is what the agency did not revise—most notably its decision to maintain a separate subcategory for “limited use units” subject only to a 5-year tune-up requirement. In its proposed rule, EPA had sought comment on whether that subcategory should be eliminated, raising the concern among industry representatives that EPA could decide to regulate limited use units—those that only operate for less than 10 percent of their annual capacity—just like units that operate far more often. In comments, industry representatives supported the limited use subcategory for a variety of reasons, including the fact that limited use units would still be required to tune-up after less total operating time compared to other units, and the agency agreed. The text of the final rule may be found here.
For more information regarding the MACT standard for boilers, please contact Mack McGuffey.
September 21, 2016 Comments Off on EPA Publishes MACT Revisions for Boilers
On September 19, 2016, EPA extended the Chemical Data Reporting (CDR) rule report deadline from September 30, 2016 until October 31, 2016. As a reminder, the Toxic Substances Control Act (TSCA) requires manufacturers of chemical substances to periodically report their manufacturing, processing, and use of chemicals listed on the TSCA Inventory. EPA granted the extension in response to the regulated community’s concerns about delays in CDR Reporting resulting from issues associated with electronic reporting. This is a one-time extension that does not apply to subsequent submission periods, the next being in 2020.
The pre-publication version of the direct final rule can be accessed here. For more information on this issue, or for questions about the contents or process of CDR reporting under TSCA more generally, please contact Angela Levin, Doug Henderson, or Buck Dixon.
September 19, 2016 Comments Off on EPA Extends TSCA CDR Reporting Deadline until October 31, 2016
Yesterday, U.S. EPA announced a new Resource Conservation and Recovery Act (RCRA) retail strategy. This strategy has been long-awaited, given that it has been well over two years since the retail industry commented on EPA’s February 14, 2014 Notice of Data Availability for the Retail Sector (20 Fed. Reg. 8926). After last year’s release of the proposed Hazardous Waste Generator Improvements Rule and Management Standards for Hazardous Waste Pharmaceuticals rule, the industry was unclear whether and to what degree EPA would turn back to a potential sector-specific rulemaking. Yesterday’s release of EPA’s retail strategy, however, confirms that EPA intends to use policy, guidance and rulemaking to fashion a remedy.
September 16, 2016 Comments Off on U.S. EPA Announces Its Retail Strategy
The U.S. Fish and Wildlife Service (FWS) has released a National Listing Workplan outlining its planned approach to address a backlog of Endangered Species Act listing petitions and critical habitat decisions for species over the next seven years. The Workplan includes 30 candidate species that FWS previously determined warrant ESA protection, as well as 320 other species based on third party listing petitions, and 11 species FWS has determined to evaluate as discretionary status reviews.
The Workplan utilizes FWS’ new methodology for prioritizing status reviews published earlier this year. Under this methodology, FWS uses a bin approach by placing each species in one of five bins based on various components of the listing petition for that species. FWS prioritizes the review of species that appear to be critically imperiled; followed by those species for which the Service has strong data available; and those species for which new science is underway to better inform key uncertainties. Lower prioritization is given to species for which conservation efforts are in development or underway and the least consideration is given to those species for which there is limited data. [Read more →]
September 7, 2016 Comments Off on FWS Announces Work Plan for ESA Listing and Critical Habitat Decisions Through 2023
11 TS Environmental Partners among Best Lawyers in America; Brooks Smith honored as “Lawyer of the Year” in Richmond, VA
Troutman Sanders is pleased to announce that more than 115 of its lawyers have been selected for inclusion in the Best Lawyers in America© 2017 edition. Among this list are 11 of our Environmental and Natural Resources lawyers, including Gregory W. Blount, Randy E. Brogdon, Margaret Claiborne Campbell, William M. Droze, Douglas A. Henderson, Hollister “Holly” A. Hill, John H. Johnson, Jr., Carroll “Mack” W. McGuffey III, and Andrea L. Rimer in our Atlanta, Georgia office.; Peter S. Glaser in Washington, D.C.; and Brooks M. Smith in Richmond, VA.
Additionally, Best Lawyers® honored Brooks Smith among the 11 Troutman Sanders partners selected as “Lawyers of the Year.”
Congratulations to Brooks Smith and all of our Environmental and Natural Resources lawyers!
August 19, 2016 Comments Off on 11 TS Environmental Partners among Best Lawyers in America; Brooks Smith honored as “Lawyer of the Year” in Richmond, VA
Troutman Sanders Environmental Practice Expands to Chicago with the Addition of Partner Kevin Desharnais
CHICAGO – August 9, 2016 – Troutman Sanders LLP is pleased to announce that Kevin Desharnais has joined the firm’s Environmental practice as a partner in the Chicago office. Prior to joining Troutman Sanders, Desharnais was a partner at Mayer Brown LLP.
For more than 20 years, Desharnais’ practice has covered a broad range of environmental regulatory and compliance issues, including air and water permitting, management of hazardous substances, remediation of contamination, enforcement response and environmental litigation. He also handles negotiation of environmental provisions in the course of corporate and real estate transactions, including mergers, stock purchases, securitizations, debt offerings and credit transactions, as well as environmental issues in renewable energy transactions. [Read more →]
August 9, 2016 Comments Off on Troutman Sanders Environmental Practice Expands to Chicago with the Addition of Partner Kevin Desharnais
According to the Healthcare Environmental Resource Center, “EPA will not be publishing a rule finalizing the Hazardous Waste Pharmaceuticals Rule in October of 2016 along with the Hazardous Waste Generator Improvements final rule and previously projected.”
Pharmacy retailers have anxiously awaited the final Management Standards for Hazardous Waste Pharmaceuticals rule (80 Fed. Reg. 50,014), after the U.S. Environmental Protection Agency (U.S. EPA) published the proposed rule on September 25, 2015 in the Federal Register, but it appears the wait will continue. Pharmacy retailers have hoped that the final rule would, among other things, provide a means of avoiding Large Quantity Generator (LQG) status and the onerous requirements, which are ill-suited for retailers. However, based on discussions with U.S. EPA sources, we now understand that the Pharmaceuticals rule is not likely to be finalized before the change in presidential administration. Given the change in administration, and depending on the election results, we may not see a final Pharmaceuticals rule for years. [Read more →]
July 29, 2016 Comments Off on U.S. EPA’s Pharmaceuticals Rule to be Kicked to Next Administration
Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws.
A section within the ENRD, the Environmental Crimes Section (“ECS”) houses a unit of 43 specialized attorneys tasked with prosecuting individuals and corporations that have violated environmental criminal statutes. Cruden’s remarks hint at a rise of ECS activity, but ECS section chief Deborah Harris indicated that the number of ECS pollution prosecutions, which normally account for 75% of ECS’s docket, has been shrinking. However, according to Harris, ECS wildlife prosecutions are increasing, and ECS has begun to focus on new enforcement areas, including worker safety. Importantly, despite shifting priorities, ECS has maintained a stable number of attorneys to handle the various prosecutions, underscoring the important role ECS will play in the future. [Read more →]
July 13, 2016 Comments Off on DOJ Shines New Light on Environmental Criminal Prosecutions