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Recently, the Office of Environmental Health Hazard Assessment (“OEHHA”) in California finalized revisions 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.

Continue Reading California’s Prop 65 Labeling Requirement Is About to Get Even More Burdensome

In the wake of Donald Trump’s election as the next president of the United States, questions have been raised regarding the fate of federal regulatory actions taken by the current administration. Recent Environmental Protection Agency (EPA) actions are of particular interest because EPA has adopted a number of very high profile and highly impactful regulations. Commenting on EPA during the campaign, Mr. Trump stated that “[w]e are going to get rid . . . of [EPA] in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.” While Mr. Trump later softened this stance by stating that he would “refocus the EPA on its core mission of ensuring clean air, and clean, safe drinking water for all Americans,” these statements illustrate that the Trump administration will almost certainly seek to roll back at least some of President Obama’s ambitious environmental initiatives. While Mr. Trump vows to reduce EPA’s size and repeal business-burdening regulations, these changes will not occur overnight. The following sections discuss ways in which an incoming administration may halt or repeal its predecessor’s actions.

Continue Reading The Trump Transition: What to Expect in the Coming Months for EPA

EPA’s update to the Cross State Air Pollution Rule is designed to address interstate transport issues under the 2008 ozone standard. The rule establishes Federal Implementation Plans (FIPs) for 22 states in the eastern half of the U.S. (see map below) and requires ozone season NOx reductions directly from fossil fuel fired Electric Generating Units (EGUs) in those states. The rule is styled as an “update” to the Cross State Air Pollution Rule because it uses the same regulatory frameworks, with some updates, as EPA’s original Cross State Air Pollution Rule, which was finalized in 2011, vacated by the DC Circuit but ultimately upheld by the Supreme Court. Most of the states subject to the CSAPR Update rule were also subject to the original CSAPR rule with the exception of Kansas, which will be new to the ozone season NOx program under the CSAPR Update Rule. The rule establishes new, more stringent ozone season NOx emissions budgets for each state subject to the rule, and those budgets take effect in May 2017. While the rule was signed and posted on EPA’s website on September 7, 2016, the final rule was published in the Federal Register today and a copy of the Federal Register version can be found here. EPA has also separately published the unit-specific allowance allocations for the affected EGUs under the rule. The allowance allocations were issued in final form, without public review and comment, in a NODA published in the Federal Register on September 30, 2016.

Continue Reading EPA Publishes Final “Update” to the Cross State Air Pollution Rule

On September 19, 2016, EPA extended the Chemical Data Reporting (CDR) rule report deadline from September 30, 2016 until October 31, 2016. As a reminder, the Toxic Substances Control Act (TSCA) requires manufacturers of chemical substances to periodically report their manufacturing, processing, and use of chemicals listed on the TSCA Inventory.  EPA granted the extension in response to the regulated community’s concerns about delays in CDR Reporting resulting from issues associated with electronic reporting.  This is a one-time extension that does not apply to subsequent submission periods, the next being in 2020.
Continue Reading EPA Extends TSCA CDR Reporting Deadline until October 31, 2016

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.
Continue Reading EPA Increases Statutory Civil Penalty Levels

The U.S. Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC) recently teamed up to enforce air and energy laws in a case involving both civil and criminal allegations under the Clean Air Act (CAA) and Federal Power Act. This marks the first criminal prosecution under the Federal Power Act.
Continue Reading Alleged Manipulation of Air Monitors Leads to Civil and Criminal Settlement Under the Clean Air Act

On March 14, 2016, EPA proposed to amend the Risk Management Program (“RMP”) under Section 112(r) of the Clean Air Act, indicating its intent to improve safety at facilities where hazardous chemicals are used and distributed. These revisions come in response to recent incidents at chemical facilities, particularly a deadly 2013 explosion that occurred at a Texas fertilizer facility, and a resulting Executive Order (“EO”) issued by President Barack Obama on August 1, 2013, requiring EPA to expand the RMP to address additional hazards.
Continue Reading EPA Proposes Changes to the Clean Air Act’s Risk Management Program

In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions.
Continue Reading New DOJ Policy Targets Individuals (Not Just Companies) For Alleged Violations of Environmental Law

On Monday, August 31, 2015, EPA released a pre-publication version of a proposed rule revising RCRA’s hazardous waste generator regulations. EPA’s stated goals for the proposal are to improve compliance, address regulatory gaps, give hazardous waste generators greater flexibility, and make the regulations more user-friendly. This summary highlights some of the changes proposed by EPA.
Continue Reading Proposed Hazardous Waste Generator Improvements Rule