On August 17, 2017, the National Marine Fisheries Service (NMFS) published in the Federal Register a final rule designating over 3,900 river miles along the east coast as critical habitat for five distinct population segments (“DPS”) of Atlantic Sturgeon (New York Bight, Chesapeake Bay, Carolina, South Atlantic and Gulf of Maine).  The agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection.  Back in 2012, NMFS had listed each of the five Atlantic Sturgeon DPS as either endangered or threatened.  77 Fed. Reg. 5880; 77 Fed. Reg. 5914.  Once a species is listed, the relevant agencies must identify critical habitat for the species.  Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.

Continue Reading NMFS Designates Critical Habitat for Atlantic Sturgeon

On August 15, 2017, EPA issued non-binding guidance providing insight of EPA’s expectations for states to assume regulation authority over coal combustion residuals (CCRs).   Comments on this guidance are due September 14, 2017. Under the Water Infrastructure and Improvements for the Nation Act, states may develop their own CCR permit programs that are “at least as protective” as the federal CCR rule.  EPA must review these programs at least every 12 years.  Upon the submission of a program application by a state, EPA will have 180 days to act, which includes a period of public notice and comment.  States may choose not to submit such a program, and instead opt to remain under the federal scheme.

Continue Reading Environmental Protection Agency Issues Guidance on Approving State Permit Programs under the WIIN Act

On August 28, 2017, the Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) published a Federal Register notice announcing that the agencies will hold ten teleconferences to hear from stakeholders on recommendations to revise the definition of ‘‘Waters of the United States’’ or “WOTUS” under the Clean Water Act. Nine of the teleconferences will be stakeholder specific calls, i.e., agriculture (row crop, livestock, silviculture); conservation (hunters and anglers); small entities (small businesses, small organizations, small jurisdictions); construction and transportation; environment and public advocacy (including health and environmental justice); mining; industry (energy, chemical, oil/gas); scientific organizations and academia; and stormwater, wastewater management, and drinking water agencies. One of the teleconferences will be open to the general public.

Continue Reading EPA and Army Schedule Public Meetings on Revisions to Definition of WOTUS

On August 22, 2017, EPA released its proposed area designations in the latest round of designations under the 2010 SO2 National Ambient Air Quality Standard (NAAQS).  The proposed designations largely track the states’ recommendations; however, EPA has identified a number of areas, recommended by states as “attainment,” that EPA believes “may be violating” the standard, including areas in Florida, Guam, Indiana, Louisiana, Minnesota, Ohio, Puerto Rico, and Wisconsin.  In addition, EPA has proposed to designate some areas as unclassifiable as opposed to unclassifiable/attainment.  EPA has published a table that compares its intended designations with the state recommended designations.  https://www.epa.gov/sulfur-dioxide-designations/intended-sulfur-dioxide-area-designations-august-2017

Continue Reading EPA Releases Proposal in the Third Round of Designations for the 2010 SO2 NAAQS

A key brief from the United States has set the United States Supreme Court on a path towards finally resolving the original jurisdiction dispute between Georgia and Florida over the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”).  On August 7, 2017, the Trump Administration filed a brief in the United Stated Supreme Court as an Amicus Curiae in the disputed “water wars” case between Georgia and Florida.  Postured where Florida is asking the Court to set aside the ruling of the Special Master who found that it had stated no redressable injury, the government brief sided with the Special Master’s ruling.

Continue Reading Southern Water Wars Teed Up For Ruling

On August 11, 2017, the Office of the Federal Register published the third of EPA’s three rules implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule). We reported on the two previously published rules as well as a pre-publication version of the Active/Inactive Rule here.  As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA with regard to chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016.  The Active/Inactive Rule also sets forth the logistics for submitting the notifications, potential exceptions from the notification requirements, and procedures for handling confidential business information (CBI).

Continue Reading EPA’s Implementation of TSCA Reform Continues Despite First Lawsuits Being Filed

On July 20, 2017, EPA published in the Federal Register two final rules intended to begin implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which significantly reformed the Toxic Substances Control Act (TSCA). The two final rules are the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Federal Register 33753 (Prioritization Rule) and Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act, 82 FR 33726 (Risk Evaluation Rule).  A third TSCA framework rule—the TSCA Inventory Notification (Active/Inactive) Requirements rule (Inventory Rule)—has not yet been published in the Federal Register, although a pre-publication version was released in June 2017 (we previously reported on all three proposed rules here).  Together, these three rules will help the Agency implement the extensive reforms set out in motion by the Lautenberg Act.

The Prioritization Rule and the Risk Evaluation Rule will become effective on September 18, 2017. Upon publication of the Active/Inactive Final Rule in the Federal Register – which EPA has indicated will become effective upon publication – a 180-day clock will be triggered for affected manufacturers, and affected processors must comply within 420 days of publication.

Finally, EPA published the notice of availability of Guidance to Assist Interested Persons in Developing and Submitting Draft Risk Evaluations, a guidance document intended to assist stakeholders with developing and submitting their draft risk evaluations, and has uploaded draft scoping documents for the first ten chemicals for which EPA is required to perform risk evaluations under the Lautenberg Act to its website (EPA’s initiation of the risk evaluation for these ten chemicals was previously discussed here).

Continue Reading EPA Finalizes TSCA Reform Framework Rules

On July 25, California Governor Jerry Brown signed into law Assembly Bill 398, an extension of California’s greenhouse gas (GHG) cap-and-trade program through 2030.  Eight days after being introduced, AB 398 passed the California Legislature with a two-thirds majority vote of 55-22 in the Assembly and 28-12 in the Senate.  AB 398 implements California’s goal of reducing GHG emissions to 40 percent below 1990 levels by 2030, which was codified in SB 32, a bill signed by Governor Brown last year.

Continue Reading California Extends Greenhouse Gas Cap-and-Trade Program Through 2030

On July 21, 2017, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) proposed amendments to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm.  According to OEHHA, these amendments are intended to clarify a previous round of amendments that were finalized in August 2016 that will become effective on August 30, 2018, discussed here .

Continue Reading California’s OEHHA Proposes Clarifying Amendments to Prop 65 Regulations

On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request.  The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.

Continue Reading Greens seek rehearing on EPA withholding power plant data