The COVID-19 pandemic has elevated fiscal concerns of water and sewer service providers, with many states imposing a moratorium on the collection of delinquent bills and the termination of service. The affordability of water and sewer service has also been a central topic in environmental justice discussions. In the midst of this heightened interest, the United States Environmental Protection Agency (“EPA”) released its long-awaited proposed updates to its Clean Water Act (“CWA”) affordability guidance. The pre-publication version of its 2020 Financial Capability Assessment for CWA Obligations (“2020 FCA”) was released on September 15, 2020. The proposal builds on EPA’s prior guidance, issued in 1997, as well as its 2014 Financial Capability Assessment Framework.  The purpose of the guidance is to establish criteria for EPA consideration of the impact of water quality, stormwater, and drinking water requirements on affordability. This information can then be used to prioritize different regulatory requirements and establish longer compliance schedules in permits and enforcement actions.

Continue Reading EPA Issues Long-Awaited Update to CWA Financial Capability Assessment

The Illinois Environmental Protection Agency (IEPA) released new proposed groundwater quality standards for select per- and polyfluoroalkyl substances (PFAS). The new standards were released as a discussion draft of proposed amendments to the groundwater quality rules under 35 Ill. Adm. Code Part 620, regulating the following PFAS types:

Continue Reading Illinois EPA Proposes PFAS Standards

In the wake of the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018), the United States Fish and Wildlife Service (FWS) has issued a series of proposals to refine the scope, meaning, and criteria for designating critical habitat for species listed under the Endangered Species Act (ESA). The most recent proposal will be published in the Federal Register on September 8, 2020, kicking off a 30-day public comment period.

Continue Reading FWS Issues Additional Habitat Proposal

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground. Continue Reading New Jersey Passes Significant Environmental Justice Legislation

On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here. Continue Reading Illinois Pollution Control Board Schedules Second Round of Public Hearings on Proposed Regulations for Coal Ash Ponds

In 2020, even the hand sanitizer is potentially suspect. Retailers, distributors and corporate purchasers are now grappling with the added problem of clearing their shelves of it and stopping employees from using the Food and Drug Administration (FDA) recalled product.

Earlier this year, to combat the novel coronavirus, the FDA issued temporary guidance to streamline regulatory processes for manufacturing alcohol-based hand sanitizer (typically ethanol or isopropyl alcohol) to get product quickly to market. Many manufacturers (generally foreign manufacturers), however, then distributed toxic or defective product to U.S.-based distributors. As such, the FDA issued a recall for certain hand sanitizer products beginning in June 2020. Over the following months, it has expanded this recall, citing risks that some products pose a risk of poisoning users with methanol and wood alcohol or leaving customers exposed to COVID-19 as a result of either adulteration or ineffective ingredients.. The FDA has advised importers, consignees, distributors, retailers and others not to distribute or sell certain hand sanitizers, even if the manufacturer of the product has not recalled it, due to the dangers of methanol contamination, including death.

Continue Reading Sanitizing Hand Sanitizer — Managing FDA-Recalled Hand Sanitizer

A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.

Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

Illinois is taking the final steps toward adopting an authorized state program for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under proposed state regulations, taking responsibility for federal Clean Air Act (CAA) requirements previously administered under delegated authority from the U.S. Environmental Protection Agency (EPA).

Continue Reading Illinois Moves to Undertake Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act

On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period. Continue Reading Definition of Habitat Proposed for the ESA

Citing delegated States as the primary enforcers of the Clean Water Act (CWA) and the promotion of federalism, Assistant Attorney General for the U.S. Department of Justice’s (DOJ) Environmental and Natural Resources Division (ENRD) Jeffrey Bossert Clark recently issued a memorandum promoting the use of enforcement discretion for certain civil CWA matters where a state proceeding has been initiated or concluded.

The memo memorializes and expands DOJ’s existing informal procedures and provides that civil enforcement actions seeking penalties under the CWA will be “strongly disfavored” if a State has already initiated or concluded its own civil administrative proceeding for penalties under an analogous State law arising from the same operative facts. Mr. Clark notes recent updates to the DOJ’s Justice Manual that require additional coordination with state and local authorities to ensure the federal government does not “pile on” when State, local or other federal enforcement actions are sufficient.

The memo includes a number of “touchstones” to consider in evaluating whether to bring a subsequent federal civil action, such as whether the State is diligently prosecuting an initiated civil enforcement action, whether the State has been able to recover the penalties it sought, or whether a federal action is necessary to protect an important federal interest not adequately addressed in the State action. Further, States must have requested the DOJ’s help in writing and cite reasons for such a request. These factors set a high bar for initiating a subsequent federal action, which includes a formal request process under which requests are subject to Mr. Clark’s approval.

Please contact Brooks M. Smith, Gregory W. Blount, Fitzgerald E. Veira, Byron W. Kirkpatrick, Patrick J. Fanning, Houston Shaner, or Buck Dixon with questions regarding the memo.