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

California’s Supreme Court recently upheld the State’s greenhouse gas (GHG) cap-and-trade auction program.  In a June 28, 2017 order, the Court denied petitions to review a lower court’s ruling that affirmed the program’s legality.  Filed by a coalition of industry groups, including the California Chamber, the petitions had alleged that the cap-and-trade program constitutes an illegal tax under Proposition 13 because the law authorizing it, AB 32, was not passed by a two-thirds vote.

Continue Reading California’s High Court Upholds GHG Allowance Auction Program

In a split decision, a California appellate panel recently affirmed a lower court’s decision upholding the state’s greenhouse gas cap-and-trade program.  Challengers, including the California Chamber of Commerce, the National Association of Manufacturers, and the Pacific Legal Foundation, argued that: (1) the California Air Resources Board (CARB) acted outside of its authority when it created a cap-and-trade program that included an auction of emission allowances, and (2) the revenue generated from the auction sales constitutes an impermissible tax.  California’s Proposition 13 requires taxes to be approved by a two-thirds vote of each house of the legislature.

Continue Reading Split California Appeals Court Upholds State Greenhouse Gas Cap-and-Trade Program

Yesterday, the EPA withdrew its request seeking data from the oil and gas industry on methane emissions from existing oil and gas operations, effective March 2, 2017.  The 2016 information collection request (ICR) required more than 15,000 owners and operators to provide detailed information about types of equipment, methane sources and emission control devices or practices at oil and gas facilities in the United States.  In a brief notice, EPA stated its desire to assess the need for the information targeted by the ICR and reduce burdens on businesses while assessing that need.  EPA also highlighted the receipt of a letter from nine state Attorneys General and the Governors of Mississippi and Kentucky expressing their concerns with the burdens imposed on businesses by the ICR. Continue Reading EPA Withdraws Oil & Gas Methane Information Request

California lawmakers have launched their first pre-emptive strike to resist potential future actions from the Trump administration to reverse existing environmental protection policies.  On February 23, 2017, state senators introduced three bills to roll federal environmental protections into California law. The aggressive legislative proposals come less than a week after Scott Pruitt was sworn in as the new Administrator of the Environmental Protection Agency (“EPA”) following a contentious confirmation process. Under Mr. Pruitt’s direction, the EPA is expected to reverse several environmental policy initiatives from the Obama administration, including regulations related to clean air, water, and climate change.

Continue Reading California Lawmakers Propose Suite of Bills to Insulate California from Trump’s Agenda

Last month, the U.S. Court of Appeals for the Sixth Circuit reinstated an Environmental Protection Agency (EPA) enforcement action against DTE Energy (DTE) for violating the New Source Review (NSR) program under the Clean Air Act.  This case stems from capital projects undertaken at DTE’s Monroe Power Plant in Monroe, Michigan during a three-month scheduled outage in 2010.  DTE had characterized the projects performed during the 2010 outage as routine maintenance, repair and replacement activities, which, if accurate, would exempt them from NSR.

Continue Reading Sixth Circuit Ruling Reinforces EPA’s Ability to Initiate NSR Enforcement Based on Projected Emissions Increases

As part of its implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114-182E reforming the Toxic Substances Control Act (“TSCA”), EPA recently published two proposed rules, including a proposed rule that would govern the process for active/inactive designations and a proposed rule that would establish the procedure for prioritizing chemicals for risk evaluation.  Notably, although EPA has released a pre-publication of a third rule – proposing the process for performing a risk evaluation – that proposal appears to have been caught up in the Administration transition and has not yet been published in the Federal Register.

Continue Reading EPA Begins to Implement TSCA Reform; Delays Possible with Transition to New Administration

On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy).  81 FR 95316.  The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.

Continue Reading Fish and Wildlife Service Issues First Comprehensive Compensatory Mitigation Policy