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

A recent case decided by the North Carolina Court of Appeals held that an entity involved only in post-closure activities at a site may still be considered an “operator” for purposes of 15A NCAC 13A .0109(h), making the entity subject to closure and post-closure standards for hazardous waste treatment, storage, and disposal facilities.

Continue Reading NC Court of Appeals Finds Post-Closure Involvement Sufficient Grounds for “Operator” Liability under RCRA

As we previously reported, industry groups, including the American Chemistry Council, challenged the final Hazardous Waste Generator Improvements Rule (“Final Rule”) in the Court of Appeals for the D.C. Circuit on February 24, 2017.  The Final Rule was published in the Federal Register on November 28, 2016 (a discussion of the Final Rule and its potential impacts can be found here).  Since our previous post, some updates have occurred in the pending challenge.

Continue Reading Updates in Industry Challenge to Hazardous Waste Generator Improvements Rule

On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater.  80 Fed. Reg. 67838 (Nov. 3, 2015).

Continue Reading EPA Letter Announces Plans to Reconsider Power Plant ELG Rule and Intent to Request to Stay Pending Litigation

Following a short delay caused by the Trump Administration’s January 20, 2017 White House Memorandum halting implementation of several regulatory processes, the rusty patched bumble bee was officially listed as an endangered species by the U.S. Fish and Wildlife Service (the “Service”) on March 21, 2017.

Continue Reading Rusty Patched Bumble Bee Placed on Endangered Species List

On February 24, 2017, industry groups challenged the final Hazardous Waste Generator Improvements Rule (“Final Rule”) in the Court of Appeals for the D.C. Circuit.  The long-anticipated Final Rule was published in the Federal Register on November 28, 2016 (81 Fed. Reg. 85732).  Pursuant to Resource Conservation and Recovery Act (“RCRA”) section 7006, petitioners have ninety days from that date to challenge the rule in the D.C. Circuit.  Because the ninety-day deadline to challenge the rule expired on Monday, February 27, 2017, no more challenges may be filed.  A previous discussion of the Final Rule and its potential impacts can be found here.

Continue Reading Industry Challenges to Hazardous Waste Generator Improvements Rule

On March 1, 2017, the Senate confirmed Ryan Zinke as Secretary of the Interior.  In grand fashion, Secretary Zinke arrived to his first day of work—at the invitation of the National Park Service (“NPS”) Park Police—riding an Irish sport horse.  As Secretary of the Interior, Zinke’s responsibilities will include overseeing the management of national lands, waters and resources through the Bureau of Land Management (“BLM”), the NPS, the Fish and Wildlife Service (“FWS”), the Bureau of Indian Affairs, and several other agencies.  Secretary Zinke is a former Navy SEAL and a former Republican Congressman from Montana.

Continue Reading New Secretary of the Interior Makes Grand Entrance Following Senate Confirmation

Last week, a federal judge granted a 60-day stay in litigation over critical habitat designation and policy pursuant to the Endangered Species Act (“ESA”).  The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”)—the agencies charged with carrying out such designations pursuant to the ESA—asked for the delay in order to allow incoming Trump Administration officials time to become familiar with the case.

Continue Reading Court Grants 60-Day Stay in Critical Habitat Litigation

In late December, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued the final revised joint Habitat Conservation Planning Handbook (HCP Handbook).  81 FR 93702.  The original HCP Handbook was issued in 1996 and later revised in 2000.  Most recently, the Services held a 60-day comment period on draft revisions to the Handbook in June 2016, during which 54 public comments were submitted.

Continue Reading Final Habitat Conservation Planning Handbook Issued

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