On Monday February 12, President Trump unveiled his long-awaited infrastructure plan.  According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.”  While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years.  That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams.  According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.

Continue Reading Trump Administration Reveals Long-Awaited Infrastructure Plan

The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject.  In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades.  Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation.  Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species.  Thus, the outcome of this case has significant implications for these 2016 rules.

Continue Reading U.S. Supreme Court Agrees to Hear Challenge to Designation of Unoccupied Habitat as Critical Habitat Under ESA

On January 3, 2018, the Environmental Protection Agency (EPA) published the User Fees for the Electronic Hazardous Waste Manifest System and Amendments to Manifest Regulations Final Rule (“User Fee Rule” or “Rule”) in the Federal Register (83 Federal Register 420).  While the User Fee Rule does not set e-Manifest user fees, it gives EPA authority to establish user fees and establishes the methodology for EPA to do so.  The Rule becomes effective June 30, 2018.

Continue Reading e-Manifest User Fee Rule Published

Last summer, EPA finalized the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule), which we previously reported on here .  As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA for chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016.  The deadline for submittal of the required reports by manufacturers – February 7, 2018, is quickly approaching.

Continue Reading Deadline Approaching for TSCA Inventory Active-Inactive Rule Reporting

On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.

Continue Reading Trump Administration Narrows the Scope of the Migratory Bird Treaty Act

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.”

Continue Reading USFWS Seeks Comments on Compensation Goals in Recently Issued Species Mitigation Policies

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).

Continue Reading EPA’s Implementation of TSCA Reform Continues Despite First Lawsuits Being Filed

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).

Continue Reading EPA Finalizes TSCA Reform Framework Rules

A recent case decided by the North Carolina Court of Appeals held that an entity involved only in post-closure activities at a site may still be considered an “operator” for purposes of 15A NCAC 13A .0109(h), making the entity subject to closure and post-closure standards for hazardous waste treatment, storage, and disposal facilities.

Continue Reading NC Court of Appeals Finds Post-Closure Involvement Sufficient Grounds for “Operator” Liability under RCRA

As we previously reported, industry groups, including the American Chemistry Council, challenged the final Hazardous Waste Generator Improvements Rule (“Final Rule”) in the Court of Appeals for the D.C. Circuit on February 24, 2017.  The Final Rule was published in the Federal Register on November 28, 2016 (a discussion of the Final Rule and its potential impacts can be found here).  Since our previous post, some updates have occurred in the pending challenge.

Continue Reading Updates in Industry Challenge to Hazardous Waste Generator Improvements Rule