The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

  • A fatality;
  • A serious injury resulting in death or inpatient hospitalization; or
  • Estimated property damage at or outside the stationary source equal to or greater than $1 million.

Reports must be submitted within 8 hours after the release. Unlike reporting requirements under other environmental statutes, this new requirement does not require a release exceed a reportable quantity and applies to both listed and unlisted chemicals. In addition to chemicals explicitly listed by certain environmental statutes, the term “accidental release” also encompasses any other substances that “in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment.”  In the past, the CSB and EPA have broadly interpreted this phrase to include seemingly innocuous chemicals.

In the Rule, CSB states that “any suspected violations . . . will be forwarded to the [EPA] for appropriate enforcement action.”  Submitted reports will also be accessible by the public through FOIA requests, meaning that owners/operators should pay particular attention to the information included in the report. For more information on the Rule or its implications please contact Randy Brogdon, Mack McGuffey, or Rich Pepper.

On February 5, 2020, EPA issued a final rule revising the petition provisions of the Title V permitting program. Under the CAA Title V program, permitting authorities must submit proposed Title V permits to the EPA administrator for a 45-day review before issuing the final permit. If the administrator has no objections within this period, any person may petition the administrator within 60 days thereafter to ask EPA to object to the permit.

The rule revises the submission requirements, the content, format of petitions, and record requirements for proposed permits submitted for EPA’s review. Specific to requirements related to the submission of petitions, EPA encourages petitioners to use an electronic submittal system, and the rule has a link to information on how to properly access and use the system. In addition to electronic submittals, petitioners will have two additional options for submitting petitions. First, petitioners will be able to submit Title V petitions using the email address on the Title V petitions website when experiencing technical difficulties with the electronic system. Alternatively, petitioners without internet access will have the option of submitting paper petitions to a physical address. The regulation also specifically requires petitioners to provide copies of the petition to the permitting authority and the permit applicant.

Furthermore, the rule specifies the content and format for Title V petitions. In particular, the rule requires a petition to contain the following elements: (1) the identification of the proposed permit on which the petition is based; (2) the grounds for an objection, such as a failure to meet all applicable requirements under the CAA or a failure to follow required public participation procedures; and (3) an indication of whether the issue was raised during the public participation process. Importantly, petitioners will be prohibited from incorporating other documents by reference unless the reference provides a specific citation to an attachment and an explanation of how the referenced material supports a claim discussed in the petition.

The rule also requires permitting authorities to respond to significant comments received during the public participation process for draft Title V permits and to provide a response to comments document, a statement of basis, and the proposed Title V permit to the administrator during the 45-day review period. Should a timely petition be filed within the proceeding 60-day period, the administration may consider the administrative record for the proposed permit and the petition. The effective date of the rule is April 6, 2020.

On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.

The proposed rule seeks to narrowly interpret liability under the MBTA to apply only those actions specifically “directed at” migratory birds that “reduce animals to human control.” This interpretation would expressly exclude the “incidental taking” of a migratory bird when such take is not the purpose of an action. The USFWS explains that the proposed rule will provide much-needed clarity, noting that the Obama administration’s interpretation was not codified in any regulation and was inconsistently applied through prosecutorial discretion and guidance based on when a take might be “foreseeable,” including from wind turbines, electrical transmission wires, and oil drilling. Additionally, the proposal would resolve a federal circuit split regarding whether the MBTA applies to incidental take. The proposal would make it clear that a violation of the MTBA “unambiguously require[s] an action that is directed at migratory birds, nests, or eggs.”

If finalized as proposed, the rule would provide greater certainty to the regulated community, as a regulation would not be changed as easily as the M opinions have been. Nevertheless, some uncertainty remains as to the scope of historically regulated activity that will now be exempt. Comments on the proposed rule are due on March 19, 2020. To avoid review under the Congressional Review Act (“CRA”), the final rule will need to be issued by May 20, 2020. Meeting the CRA deadline may prove challenging as USFWS has also initiated the required National Environmental Policy Act (“NEPA”) review of the MBTA proposed rule. USFWS is now in the process of public scoping, and comments on the scope of the NEPA review are also due to USFWS by March 19, 2020.

Troutman Sanders associate Andy Flavin authored an article published in Law360 titled “Getting State Approvals for Energy Storage Siting.” In the article, Andy explains why energy storage developers should carefully assess whether their project requires approval from state siting regulators and the possible implications. He wrote:

States normally require utilities and other developers to obtain siting approval before beginning construction of traditional utility infrastructure like power plants and electric transmission lines. Depending on the state, these approvals may be known as “certificates of public convenience and necessity,” “certificates of public good” or some variation thereof.

Many state siting laws were implemented decades ago, but few have been sufficiently updated to reflect recent technological developments and public policy priorities. This raises an important question: Are energy storage facilities subject to state siting requirements as generation or transmission facilities?

To read the article in full, click here.

On January 31, 2020, California announced proposed changes to warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, by releasing a Notice of Proposed Rulemaking (“Proposal”). Among other things, the changes are intended to clarify on-line warning requirements (through a website or using a mobile phone app) and catalog warning requirements. The Proposal also includes revised requirements specific to the sale of alcoholic beverages through delivery services, reflecting the provisions of an enforcement action settlement currently being negotiated by the Attorney General.

Many of the revisions proposed by the Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for implementing regulations under Proposition 65, aim to ensure that consumers see warnings prior to or during the on-line purchase of a product—labeling on product packaging alone is not enough to meet requirements when purchases take place outside of a traditional retail location.

Proposed language would clarify the following requirements:

  • Hyperlinks may be used to provide warnings on websites and through mobile apps, so long as both the hyperlink and the linked warning page meet requirements for formatting and content. Specifically, the hyperlink must include the word “WARNING” and must link to the full text of the applicable warning.
  • Internet and catalog warning requirements are separate from and additional to tailored product warnings, including warnings provided through electronic devices or processes— tailored product warning requirements must be met regardless of the place or context of sale, and even if warnings are provided online or in a catalog.
  • Alternative language requirements for consumer product exposures and for environmental exposures also apply to internet and catalog warnings. That is, when a website or catalog includes information about a product in a language other than English, the warning must also be provided in that language in addition to English.

Comments on the proposed changes may be submitted through the OEHHA web site through March 16, 2020.

New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).

The addition of 160 chemicals subject to TRI reporting represents a significant increase in the total number of TRI listed chemicals, which previously numbered around 600, none of which were within the PFAS family. The number of PFAS added to the list is expected to increase in coming months as EPA continues with an ongoing rulemaking (previously discussed here) addressing proposed PFAS additions to the TRI list announced on December 4, 2019. Additional PFAS that are subject to confidentiality claims may be added after EPA goes through a review process.

The NDAA adopts a uniform threshold of 100 pounds for each of the listed PFAS, a level that could impact a large number of facilities. Facilities with ten or more employees in industry sectors covered by the TRI (including mining, utilities, and manufacturing) must now report releases of the listed PFAS if they use, manufacture, or process more than 100 pounds of any of the 160 substances in a year. As a result, affected facilities must begin tracking and collecting data on these chemicals in 2020. Reporting on these chemicals used, manufactured, or processed in 2020 will be due by July 1, 2021. Note that failure to submit timely reports for TRI-regulated chemicals can result in the imposition of significant civil penalties.

As a reminder, third-party plaintiffs often use companies’ TRI reports to support toxic tort claims and, with the amount of national attention PFAS have garnered, companies should expect that PFAS releases reported as part of 2020 TRI reports will be flyspecked by both private plaintiffs and regulators seeking to understand the sources and scope of PFAS releases associated with various industries.

Whether and how Congress would address PFAS in the NDAA was a central question as Congress was hammering out the details of the bill late last year. Several provisions that would have raised the profile of these emerging contaminants were ultimately omitted from the bill, including requirements for drinking water standards and hazardous substance designations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). Nevertheless, PFAS remains a focus of public attention, and these and similar proposals are likely to reemerge, either at the federal level or in the ongoing expansion of state regulation. Requiring TRI reporting for PFAS was just one of the goals set forth in the PFAS Action Plan released by EPA in February 2029, discussed in detail here.

The complete list of PFAS subject to TRI reporting requirements as of January 1, 2020 is available here.

On January 28, in Center for Biological Diversity v. Everson, No. 1:15-cv-00477 (D.D.C. 2020), the U.S. District Court for the District of Columbia remanded, but did not vacate, the United States Fish and Wildlife Services’ (“USFWS”) April 2015 decision to list the northern long-eared bat (“NLEB”) as threatened under the Endangered Species Act (“ESA”). The court also vacated a component of the USFWS and National Marine Fisheries Services (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered in a “significant portion of its range” once a determination has been made that the species is threatened throughout “all of its range.” The SPR Policy, issued in 2014, has formed the basis for other listing decisions and thus its vacatur has implications beyond the NLEB.

According to the court, the USFWS did not adequately explain why threats facing the species warranted a listing as threatened rather than endangered. In particular, the court found that the USFWS did not adequately support its conclusion that a threatened designation was supported by the fact that 40% of the bat’s range was unaffected by white nose syndrome (“WNS”). The court cited the USFWS’ own statements that the unaffected portion of the bat’s range had a much lower population density. The court also found that the USFWS impermissibly omitted any consideration of the cumulative threats facing the species. The Agency’s justification for the threatened listing relied on the effects of WNS, ignoring other threats. Finally, the court found that the Agency had impermissibly prevented the public from submitting meaningful comments by reaching its decision before the close of the public comment period. Nevertheless, the court did not vacate the threatened listing, and both it and the related 4(d) rule (explained in a previous blog post) will remain in place while the USFWS reconsiders the listing decision.

An additional impact of the decision relates to the court’s vacatur of a component of the SPR Policy. The ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Under the SPR Policy, the Services do not analyze whether a species is endangered in a significant portion of its range once it is determined that the species is threatened throughout all of its range. According to the court, this practice violates the plain language of the ESA by reading the phrase “significant portion of its range” out of the definition of “endangered.” According to the plaintiffs, the Services have applied this rationale pursuant to the SPR Policy in at least 13 other threatened listing decisions, including species such as the West Indian manatee and Gunnison sage-grouse.

For more information on this decision or its implications, please contact Angela Levin, Andrea Wortzel, Rich Pepper, or Morgan Gerard.

On Monday, January 27, the United States Supreme Court issued a notice granting both Florida and Georgia 45 days to respond to a special master recommendation recently issued by New Mexico-based federal Tenth Circuit Judge Paul Kelly, as well as time to address each other’s arguments in subsequent legal briefs.

The notice sets the stage for the justices to potentially hear the case later this spring or more likely, according to Court observers, in their next term that begins in October, 2020. The Court could also decide the 7-year-old case, Florida v. Georgia, without further oral arguments depending on the parties’ submissions. Florida sought to limit Georgia’s water usage in the Apalachicola-Chattahoochee-Flint river basin, where the Chattahoochee River transects Alabama and Georgia, the Flint River flows through rich South Georgia farmland, and the combined flows into the Apalachicola River ultimately reaches Apalachicola Bay and the Gulf of Mexico. The headwaters of the basin within Lake Lanier serve as the main source of drinking water for a majority of metro Atlanta and irrigates farms in southwest Georgia, providing an economic impact to Georgia estimated to be $13.8 billion.

Judge Kelly’s recommendation in December was a major step forward for Georgia in the long-running dispute, which has incurred nearly $50 million in defense costs to combat efforts to curtail water availability. This is not unfamiliar territory for Georgia who previously sought to hold onto a favorable procedural ruling by a prior special master, Ralph Lancaster. However, the Court wanted its new special master to address matters on the merits and the Court now has that substantive ruling before it. Special Master Kelly wrote that “the evidence has shown that Georgia’s water use is reasonable” and that the evidence did not support a finding that the benefits of capping the state’s water usage as Florida had asked would outweigh the economic harms to Georgia.

Questions may be directed to William Droze.

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.

Notably, the final rule eliminates the 2015 Rule’s “significant nexus” test dictating the jurisdictional status of certain waters on a case-by-case basis, and instead only provides categories of jurisdictional and non-jurisdictional waters which the Agencies believe will provide much needed certainty and predictability. It also excludes ephemeral streams (i.e. having flow only in response to precipitation) and introduces the concept of a “typical year” to qualify a water’s jurisdictional status. In light of the more limited federal jurisdiction in the final rule, the Agencies acknowledge the flexibility afforded to states to manage their own waters and wetlands.

In accordance with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), the Agencies interpret jurisdictional waters as being “relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The final definition accordingly includes four categories of jurisdictional waters:

  1. The territorial seas and waters capable of being used in interstate or foreign commerce (i.e. traditional navigable waters);
  2. Tributaries directly or indirectly contributing surface water flow to traditional navigable waters in a typical year;
  3. Lakes and ponds, and impoundments of jurisdictional waters directly or indirectly contributing surface water to traditional navigable waters in a typical year; and
  4. Wetlands adjacent to these jurisdictional waters.

The final rule also identifies eleven categories of non-jurisdictional waters, which cannot qualify as one of the four types of jurisdictional waters listed above. According to the Agencies, many of these exclusions reflect longstanding agency practices.

  1. Groundwater;
  2. Ephemeral features;
  3. Diffuse stormwater runoff and directional sheet flow over upland;
  4. Ditches that are not traditionally navigable or constructed in a tributary to traditional navigable waters, as well as ditches constructed in adjacent wetlands that do not qualify as adjacent wetlands;
  5. Prior converted cropland;
  6. Artificially irrigated areas that would revert to upland if irrigation ceased;
  7. Artificial lakes and ponds constructed in upland areas or in non-jurisdictional waters;
  8. Water-filled depressions incidental to mining, and pits excavated to obtain fill, sand, or gravel, that are located in upland areas or non-jurisdictional waters;
  9. Stormwater control features constructed in upland or in non-jurisdictional waters;
  10. Groundwater recharge, water reuse, and wastewater recycling structures constructed in upland or in non-jurisdictional waters; and
  11. Waste treatment systems.

Substantively, the final rule is very similar to the proposed rule, which we summarized in a previous blog post. According to the Agencies, most changes were to provide clarity, rather than substantive alterations in jurisdictional coverage.

The final rule is the most recent development in the disputed meaning of “waters of the United States.” Since 2015, states and interested stakeholders have challenged nearly every effort by the Agencies to define the term. After the implementation of the 2015 Rule, a variety of states brought suit challenging the expanded scope of the definition in the 2015 Rule as an overreach by the Agencies. At least 27 states successfully sought injunctions to block enforcement of the 2015 Rule—creating a patchwork of enforcement where only some states operated under 2015 Rule. See, e.g., Georgia v. Wheeler, 2:15-cv-0079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019); North Dakota v. U.S. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015).

In 2018, when the Agencies attempted to suspend the 2015 Rule, lawsuits were also filed to prevent the Agencies’ action. In South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018), environmental groups successfully argued that the Agencies’ attempt to suspend the 2015 Rule violated the rulemaking procedure required in the Administrative Procedure Act (“APA”) and was arbitrary and capricious under the APA. Ultimately, the court issued a nationwide injunction preventing the suspension of the 2015 Rule.

In 2019, when the Agencies formally repealed the 2015 Rule, lawsuits were also filed challenging that action. In New York v. Wheeler, 1:19-cv-11673 (S.D.N.Y. filed Dec. 20 2019), New York, 13 other states, the District of Columbia and New York City brought suit challenging the Agencies’ efforts. In that lawsuit, the plaintiffs allege that the Agencies’ repeal of the 2015 Rule was “arbitrary, capricious, not accordance with law, and without observance of procedure required by law under the APA.”

Following this pattern, the Trump Administration’s redefining of “waters of the United States” will certainly be challenged in the very near future, which could result in a reviewing court blocking its implementation. We will continue to provide updates as courts begin to review the challenges to the rule, as well as other notable challenges brought during its implementation. For more information on this rule or its implications, please contact Fitzgerald Veira, William Droze, Patrick Fanning, Houston Shaner, Morgan Gerard, Rich Pepper, and Mandi Moroz.

On January 27, EPA published a preliminary list of manufacturers that are potentially subject to a fee obligation under the Toxic Substances Control Act (“TSCA”). This is a follow-up notice to EPA’s designation of 20 additional substances as High Priority Substances in December, for which the agency will now go through a risk evaluation, including:

  • p-Dichlorobenzene
  • 1,2-Dichloroethane
  • trans-1,2- Dichloroethylene
  • o-Dichlorobenzene
  • 1,1,2-Trichloroethane
  • 1,2-Dichloropropane
  • 1,1-Dichloroethane
  • Dibutyl phthalate (DBP) (1,2-Benzene- dicarboxylic acid, 1,2- dibutyl ester)
  • Butyl benzyl phthalate (BBP) – 1,2-Benzene- dicarboxylic acid, 1- butyl 2(phenylmethyl) ester
  • Di-ethylhexyl phthalate (DEHP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis(2-ethylhexyl) ester)
  • Di-isobutyl phthalate (DIBP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis-(2methylpropyl) ester)
  • Dicyclohexyl phthalate
  • 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA)
  • Tris(2-chloroethyl) phosphate (TCEP)
  • Phosphoric acid, triphenyl ester (TPP)
  • Ethylene dibromide
  • 1,3-Butadiene
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB)
  • Formaldehyde
  • Phthalic anhydride

Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, EPA has the right to collect fees from manufacturers (including importers) of substances that are undergoing a risk evaluation.

EPA has prepared lists of manufacturers for each substance, which are available in Docket EPA-HQ-OPPT-2019-0677. The fee obligation can be imposed on a company even if the substance is imported as part of an article, manufactured in small amounts or even as a byproduct or an impurity. Nevertheless, because EPA used Toxic Release Inventory (“TRI”) reports as a source to generate its preliminary lists, it is also possible that EPA has incorrectly identified companies as manufacturers.

EPA is opening a 60-day comment period for companies to either disagree with EPA’s conclusion that they qualify as a manufacturer or to self-identify as a manufacturer if the Agency inadvertently left them off the list. EPA notes that a failure to self-identify during the comment period would qualify as a violation of TSCA, and subject the company to per-day penalties for failure to report. Companies also have the opportunity to submit a certification that the company ceased manufacture prior to March 20, 2019, which would exempt them from the fee, or to submit a small business certification, which would substantially reduce the fee for that manufacturer. The comment period will close on March 27, 2020.

This notice potentially has significant implications as the fee for each risk evaluation is $1.35 million, to be divvyed up between all of the manufacturers that EPA lists in its final rule (which is expected to be published concurrently with the scoping document for each substance’s risk evaluation). As a result, it will be important for listed companies to evaluate whether EPA’s designation is correct, whether the company is eligible to submit a certification that it ceased manufacture prior to the cutoff date, and whether the company qualifies as a small business. Finally, companies that are not on the list should nevertheless review their manufacturing processes over the past five years carefully to ensure that they do not have an obligation to self-identify for any substances.