Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act. Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016). The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation. We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued. U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016). Both policies focus on using mitigation to achieve a “net conservation benefit.”
On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).
On November 1, 2017, New Jersey officials announced that they would set Maximum Contaminant Levels (MCLs) for public drinking water systems for PFOA and PFNA, making the Garden State the first in the nation to do so.
On October 25, 2017, EPA Region 6 announced a settlement with Macy’s department stores for alleged violations of hazardous waste regulations. In the press release, EPA alleged that Macy’s generated thousands of pounds of hazardous waste between 2012 – 2015 and qualified as a small-quantity generator but failed to notify EPA and state authorities. EPA also alleged that Macy’s failed to meet the regulatory requirements for small-quantity generators and did not complete appropriate manifests. As part of the settlement, the company is required to pay a $375,000 civil penalty and, as a supplemental environmental project, develop an internal training and audit program. This settlement demonstrates that EPA Region 6 continues to pursue enforcement actions initiated under the former Administration using evidence from data mining of manifests and records related to hazardous waste generators, big and small. With this EPA action, the current Administration appears to be willing to continue its focus on retail hazardous waste enforcement. Troutman Sanders has extensive experience advising clients on retail hazardous waste management and enforcement. Please contact Greg Blount or Angela Levin for further information.
Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants. Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured. S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues. Continue Reading Troutman Sanders Forms Group Focused on Species Issues
On August 17, 2017, the National Marine Fisheries Service (NMFS) published in the Federal Register a final rule designating over 3,900 river miles along the east coast as critical habitat for five distinct population segments (“DPS”) of Atlantic Sturgeon (New York Bight, Chesapeake Bay, Carolina, South Atlantic and Gulf of Maine). The agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection. Back in 2012, NMFS had listed each of the five Atlantic Sturgeon DPS as either endangered or threatened. 77 Fed. Reg. 5880; 77 Fed. Reg. 5914. Once a species is listed, the relevant agencies must identify critical habitat for the species. Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.
On August 11, 2017, the Office of the Federal Register published the third of EPA’s three rules implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule). We reported on the two previously published rules as well as a pre-publication version of the Active/Inactive Rule here. As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA with regard to chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The Active/Inactive Rule also sets forth the logistics for submitting the notifications, potential exceptions from the notification requirements, and procedures for handling confidential business information (CBI).
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).
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.
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 .