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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

On July 16, 2020, the Council on Environmental Quality (CEQ) published its long-awaited final rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA), introducing important changes to the 40-year-old review process. The statute requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but

The California State Water Resources Control Board (Water Board) has issued Order WQ 2020-0015-DWQ, requiring Publicly Owned Treatment Works (POTWs) with dry weather design flows greater than 1 mdg to test for per- and polyfluoroalkyl substances (PFAS) in influent, effluent, biosolids, and, in some cases, groundwater. POTWs with existing groundwater monitoring programs may be

Under the Clean Water Act, stormwater is considered a nonpoint source. Accordingly, benchmark standards and best management practices have been used to manage stormwater discharges. At least in California, that all changes on July 1, 2020, as amendments to California’s Statewide General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial General Permit” or

On June 1, the Environmental Protection Agency (EPA) released a final rule clarifying substantive authorities and procedural requirements for water quality certifications under section 401 of the Clean Water Act (CWA). EPA’s August 2019 notice of proposed rulemaking (NOPR) (summarized in our previous post) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping substantive and procedural changes to its section 401 regulations in conformance with its interpretation. EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in adopting new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (TAS) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.
Continue Reading Long-Awaited EPA Rule Overhauls Section 401 of Clean Water Act

Today, June 1, 2020 marks the opening of the window to submit data for the four-year reporting period under the Chemical Data Reporting Rule (CDR Rule) of the Toxic Substances Control Act (TSCA). The CDR Rule requires manufacturers (including importers) of substances listed on the TSCA Chemical Inventory to submit data to EPA every four years. Companies subject to the CDR Rule should be aware of several developments that affect reporting requirements and procedures this reporting period.

Continue Reading Chemical Data Reporting Cycle Begins June 1 with Extended Deadline and New Exemptions

The question of how to regulate temperature in water bodies is one that states in the Northwest have struggled with for years. The U.S. Environmental Protection Agency (EPA) addressed that question on May 18, 2020, when it released a draft Total Maximum Daily Load (TMDL) to achieve water quality standards for temperature in certain reaches of the Columbia and Lower Snake Rivers in Oregon and Washington. This new TMDL comes a few months after a decision from the U.S. Court of Appeals for the Ninth Circuit, Columbia Riverkeeper v. Wheeler, requiring the agency to take the lead after Oregon and Washington failed to submit their own TMDL. Comments on the draft TMDL are due by the end of July 21, 2020.

Continue Reading EPA Issues Draft Temperature TMDL for Columbia and Snake Rivers

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by

Revisions to the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, go into effect on April 1, 2020. The amendments are intended to clarify methods of compliance by upstream parties, including manufacturers, producers, packagers, importers, suppliers, or distributors of products with chemicals subject to warning requirements under the Act. They also include a modified definition of the key phrase “actual knowledge,” one of the triggers that can result in retailer responsibility for warnings.

Continue Reading Proposition 65 Amendments Seek to Narrow “Actual Knowledge” and Expand Compliance Options

California regulators have announced that the comment period for a recent proposal, Supplemental Guidance: Screening and Evaluating Vapor Intrusion, has been extended to June 1, 2020, and public workshops and webinars originally scheduled for April have been postponed until further notice.

Vapor intrusion occurs when contamination moves from groundwater and soil beneath a structure into the air, accumulating in occupied areas where they can result in safety hazards or health effects. Common vapor-forming chemicals include volatile organic compounds including trichloroethylene (TCE), mercury, polychlorinated biphenyl (PCB), and certain pesticides. Testing for vapor intrusion is an important step in investigating a potential development site, and in ensuring the health and safety of existing residential and commercial buildings.


Continue Reading Update – New California Supplemental Vapor Intrusion Guidance Comment Period Extended, Trainings Postponed