At a public hearing on March 6, 2019, the California State Water Resources Control Board announced a “Phased Investigation Plan” for perfluoroalkyl substances (PFAS). The Investigation Plan represents a coordinated effort by the Water Board to identify PFAS in discharges and drinking water sources across California. This new initiative leverages the Board’s enforcement and permitting powers to order testing and will proceed in three phases. Under each phase, the Water Board will issue orders to the covered facilities requiring at least one round of testing of their discharge to identify whether PFAS are present.
On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions. The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA). Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives. Below we summarize the highlights of the 60+ page Plan.
In the last month of 2018, EPA released two proposals that it claims will have no immediate effect—revised CO2 standards for new coal-fired power plants that EPA does not expect anyone to build, and a determination that it is not “appropriate and necessary” to have a mercury rule that it nevertheless plans to keep on the books. The question many may be asking is why EPA would issue two highly controversial rules if they won’t have any practical effect? The answer may lie in the precedent they will set.
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”). The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect. The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.
The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.
This morning, the Environmental Protection Agency (EPA) released its proposed replacement for the Clean Power Plan (CPP) titled the “Affordable Clean Energy Rule,” which would regulate greenhouse gas emissions at existing coal-fired power plants. The proposed rule gives discretion to states for determining the greenhouse gas performance standards achievable for existing coal-fired power plants within their state. Specifically, the proposed rule would require states to evaluate a menu of heat rate improvement options and, taking into account the unit’s remaining useful life and other factors, determine the lb/MWh CO2 emission rate achievable at each affected unit. While the rule proposes to allow for emissions averaging among affected units at an individual source, it does not provide for broader averaging or emissions trading. To facilitate the heat rate improvement projects, EPA also has proposed an option for states to adopt a new emissions test under the New Source Review program for EGUs that is based on both hourly and annual emissions.
On July 30, the United States Fish and Wild Service (“USFWS”) published notices in the Federal Register withdrawing the USFWS Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (“ESA-CMP”). Both of these policies were published in late 2016, at the tail end of the Obama Administration.
On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.
In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration. Continue Reading Trump Administration Proposes Broad Changes to Endangered Species Act
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 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.