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On January 11, the U.S. Environmental Protection Agency (EPA) issued a new interpretation of its coal combustion residual (CCR) regulations: CCR landfills or surface impoundments “cannot be closed with coal ash in contact with groundwater.” Although EPA claims it has “consistently held” this interpretation, this is the first time EPA has expressly articulated this view. Perhaps acknowledging the novelty of its position, EPA also announced its intent to “review … state-level CCR program applications to ensure they are as protective as federal regulations” and to proceed toward a federal CCR permitting framework.
Continue Reading EPA Announces Key CCR Policy Amid Alternative Closure Determinations

Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).

Continue Reading Army Corps Halts Coverage Under Nationwide Permits

Today, the U.S. Environmental Protection Agency (EPA) announced a new “Strategic Roadmap (Roadmap),” describing a suite of ongoing and future agency actions to address per- and polyfluoroalkyl substances (PFAS). While many of these actions were previously presented in EPA’s 2019 PFAS Action Plan, or in more recent announcements, the Roadmap provides additional updates and clarity into the expected timing of some regulatory actions. The new projected dates for some key regulatory initiatives include the following:

Continue Reading EPA Announces New “Strategic Roadmap” for PFAS

EPA announced yesterday its intent to revise some portions of the 2020 Steam Electric Effluent Limitation Guideline Reconsideration Rule (2020 ELG Rule). EPA’s press release and the pre-publication version of its Federal Register notice sent a clear message that the agency is aiming at membrane technology to control flue gas desulfurization (FGD) wastewater discharges from coal-fired power plants. The notice also states that the agency will reconsider the technology selected for bottom ash transport, and it may revise or eliminate the subcategories created by the 2020 ELG Rule for high-flow facilities, low-utilization facilities, and for facilities that commit to retire or repower coal-fired units by 2028.

Continue Reading EPA Signals More Stringent Regulation for Steam Electric Power Generators

On December 8, the United States Environmental Protection Agency (EPA or the Agency) issued draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in County of Maui v. Hawaii Wildlife Foundation, 140 S. Ct. 1462 (2020). The guidance is intended to help both members of the regulated community and permitting authorities determine when a National Pollutant Discharge Elimination System (NPDES) permit may be required for discharges from point sources that reach navigable waters through groundwater. Comments on the draft guidance are due 30 days after its publication in the Federal Register.

Continue Reading EPA Seeks to Clarify Application of Maui and “Functional Equivalent” Test

On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here.
Continue Reading Illinois Pollution Control Board Schedules Second Round of Public Hearings on Proposed Regulations for Coal Ash Ponds

Citing delegated States as the primary enforcers of the Clean Water Act (CWA) and the promotion of federalism, Assistant Attorney General for the U.S. Department of Justice’s (DOJ) Environmental and Natural Resources Division (ENRD) Jeffrey Bossert Clark recently issued a memorandum promoting the use of enforcement discretion for certain civil CWA matters where a state proceeding has been initiated or concluded.
Continue Reading New DOJ CWA Enforcement Guidance

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 does not mandate any particular outcome. The final rule follows CEQ’s June 2018 Advanced Notice of Proposed Rulemaking (ANOPR) and the January 2020 Notice of Proposed Rulemaking (NOPR), which we previously discussed here.
Continue Reading CEQ Final Rule Overhauls NEPA Regulations

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.
Continue Reading Federal Courts Reach Opposite Conclusions Regarding Implementation of the Navigable Waters Protection Rule

This week, the U.S. Environmental Protection Agency (EPA) crystalized a new requirement that facilities manufacturing, processing, or otherwise using any of 172 different per- and polyfluoroalkyl substances (PFAS) submit Toxics Release Inventory (TRI) reports by July 1, 2021, for calendar year 2020. The EPA created the TRI Program in 1986 under the Emergency Planning and Community Right-to-Know Act to provide the public with information regarding releases of chemicals that the EPA has concluded may pose a threat to human health and the environment. Facilities that manufacture, process, or use listed chemicals above established threshold quantities must annually report to the EPA the amounts released or otherwise disposed.
Continue Reading EPA Requires TRI Reporting of PFAS for Year 2020