On June 11, 2018, the Supreme Court summarily affirmed the Ninth Circuit’s opinion in United States v. Washington through a 4-4 split, with Justice Kennedy taking no part in the decision due to his involvement in similar cases during his time as a circuit judge on the Ninth Circuit. The immediate effect of the high court’s decision will be to require the State of Washington to replace or modify, at the State’s expense, several hundred culverts placed in streams under roads and bridges throughout the State. In the longer run, however, the decision could have much more far-reaching impacts related to federal and state obligations to protect against habitat degradation of salmon and other aquatic species pursuant to their obligations under several Nineteenth Century treaties reached with Native American Tribes in the Pacific Northwest.
On June 7, 2018, U.S. EPA issued an advance notice of proposed rulemaking (“ANPR”) aimed at developing a consistent and transparent interpretation of cost and benefits consideration in regulatory analyses, including regulations promulgated pursuant to the Clean Air Act, Clean Water Act, Safe Drinking Water Act and other statutes. EPA will accept comments on the ANPR for 30 days after it is published in the Federal Register.
Assessing costs and benefits has been a contentious part of EPA rulemakings. For instance, in the Mercury and Air Toxics (MATS) rulemaking, EPA determined that the monetized cost of the rule would be $9.6 billion annually whereas the monetized benefit would be $4-6 million annually. EPA determined that MATS was nevertheless “appropriate” regulation, but the Supreme Court reversed, ruling that the agency had improperly refused to consider costs. While EPA, during the Obama administration, subsequently modified its “appropriate” determination for the MATS rule, it has been speculated that the Trump administration might take some further action in that regard. Continue Reading EPA Considers Changing its Cost-Benefit Review Process
On May 30th, EPA reinstated a Bush Administration RCRA exemption that allows third-party recycling of hazardous secondary materials, known as the “Transfer-Based Exclusion.” The move will make it easier for facilities to use vendors to recycle materials like spent solvents and expired pharmaceuticals without managing them as hazardous waste. As a result, it may be possible for Large Quantity Generators (“LQG”) to reduce their generator status and avoid the compliance obligations that come with being an LQG.
A federal judge last week upheld the constitutionality of the Congressional Review Act (CRA), a law that Congress has used recently to overturn more than a dozen federal regulations from the Obama Administration. Under the CRA, Congress, by a majority vote, can disapprove a federal regulation if it does so within sixty legislative days after the regulation was adopted. Once Congress disapproves a regulation, it cannot be readopted in substantially similar form.
On Friday, May 11, California’s Department of Toxic Substances Control (DTSC) issued a notice that it is considering listing laundry detergent that includes nonylphenol ethoxylates (NPE) as a “priority product” under its Safer Consumer Products regulations. If DTSC finalizes a rule listing the product, it will kick off an alternatives assessment process, during which manufacturers, sellers, importers, and distributors of the product will have to evaluate alternatives to the use of NPE, and which may result in DTSC concluding that NPE in laundry detergent should be phased out and replaced with a “safer” alternative. Regardless, the alternatives assessment process is a time-consuming and cost-intensive process, and will be subject to a lot of scrutiny from DTSC and third parties.
The U.S. EPA has adopted final nonattainment designations for 51 areas across the country for the agency’s 2015 national ambient air quality standards (NAAQS) for ozone. In a previous action, EPA had issued its attainment and unclassifiable designations, finding that 85% of the nation’s counties qualify for one of those designations (a designation of unclassifiable means that the agency does not have enough information to determine whether the areas is in attainment or. nonattainment). Still to come, likely by July 17, 2018, is action by EPA on eight counties around San Antonio, Texas.
On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”). As background, under the ESA, the “take” of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
On April 17, 2010 EPA issued a guidance document on the implementation of significant impact levels (“SIL”) for ozone and fine particles. Under EPA’s air pollution permitting regime known as “New Source Review,” SIL values are one way to demonstrate that a new facility or modification of an existing facility will not cause a violation of the National Ambient Air Quality Standards (“NAAQS”) or Prevention of Significant Deterioration (“PSD”) increments for a regulated pollutant. In short, if a source’s “projected impact on air quality” is below the “SIL,” the source is deemed to have no significant impact on air quality. If a source’s impacts are above the SIL, far more extensive modeling analyses are needed to demonstrate compliance, so the SIL helps streamline the permitting process for projects that can meet it.
On March 31, 2018, the District Court for the District of Columbia ordered the Environmental Protection Agency (“EPA”) to complete a residual risk and technology review (“RTR”) by October 1, 2021 for nine source categories of hazardous air pollutants (“HAPs”). The specific source categories at the center of this challenge were:
• Primary Copper Smelting
• Carbon Black Production
• Cyanide Chemicals Manufacturing
• Spandex Production
• Flexible Polyurethane Foam Fabrication Operations
• Refractory Products Manufacturing
• Semiconductor Manufacturing
• Primary Magnesium Manufacturing
• Mercury Cell Chlor-Alkali Plants
Section 112 of the Clean Air Act establishes a two-stage process for regulating HAPs from stationary sources. In the first stage, EPA is required to develop technology-based standards, known as MACT standards, for specified industrial source categories. In the second stage, EPA must reassess those standards eight years after they are promulgated. This second stage is itself divided into two distinct processes: a one-time residual risk review and a technology review to be conducted every eight years.
The deadlines for these sources were seven to eight years past due. Thus, plaintiff environmental groups claimed that EPA violated the CAA because it failed to timely issue the RTRs, and they proposed an intense schedule for EPA to complete the rulemakings. Plaintiffs proposed that EPA promulgate final rules for five source categories by March 31, 2019, and for the remaining four source categories by March 31, 2020. While EPA did not disagree that the rulemakings were past due, the Agency argued that the proposed timeline was impossible to meet because of the limited resources at the Agency’s disposal and the complexities involved in these types of rulemakings. Because of these restraints, EPA requested seven years to complete the nine rulemakings, proposing nine specific dates with the earliest rule due by July 22, 2022 and the latest due by January 16, 2025.
The court held that EPA failed to demonstrate that it was impossible to issue the rulemakings in a timely manner. However, it found that the plaintiffs’ timeline was “much too draconian.” Therefore, the court set its own timeline, requiring EPA to begin the rulemakings by January 1, 2019 and issue final rules for all nine source categories no later than October 1, 2021, in less than four years. Importantly, the court gave EPA some flexibility by allowing the Agency to “move for an extension of the deadlines” if it needs more time.