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In its response to comments calling for a Section 7 consultation under the Endangered Species Act (“ESA”) for its recently revised Cadmium Water Criteria, EPA determined that the appropriate time for ESA consultation is during the state adoption process. Several groups, including the National Marine Fisheries Service (“NMFS”), the Center for Biological Diversity, and the California State Water Resources Control Board all submitted public comments on the proposed criteria changes recommending ESA consultation. The groups argued that due to the frequent adoption of the federal criteria by states, EPA should consult with NMFS in order to insure species protection. The groups further argued that deferring consultation until the state adoption process resulted in a “piecemeal approach” that leaves EPA’s adoption process “legally vulnerable.”

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.

The basis of an effective Environmental, Health and Safety (EHS) program remains the strength of its management system and how thoroughly it is integrated into business practices. This year, Troutman Sanders is thrilled to be the presenting sponsor at the North Carolina Chamber Environmental Compliance Conference, which takes place next Thursday, January 28th in Durham, North Carolina. This conference is designed to provide employers with an in-depth understanding of current critical issues and practices related to the effective implementation of EHS programs as well as tools to navigate the regulatory landscape. Attendees will join expert panelists and top North Carolina Department of Environmental Quality (NCDEQ) officials in proactive discussions on pressing regulatory issues, legislation, policy decisions, and other initiatives on water, waste, air and natural resources that affect business. This conference provides NC DEQ officials with valuable feedback from the regulated community while providing businesses with an excellent forum on emerging environmental trends and issues.

On November 9, 2015, EPA published a proposal to revise its Clean Air Act refrigerant regulations under the stratospheric ozone protection program, which cover all appliances containing a refrigerant, including HVAC systems, commercial food refrigeration appliances, and industrial cooling processes.  The proposal would significantly increase the regulatory burden associated with those regulations in two ways.

On Tuesday, January 5, 2016, EPA partially approved and partially disapproved a revision to the Texas “regional haze” State Implementation Plan (SIP). The regional haze program is intended to protect and improve visibility at national parks and requires states to write plans for accomplishing those goals. While EPA has disapproved dozens of states’ regional haze SIPs in the past, primarily based on the state’s determination of “Best Available Retrofit Technology” (BART), this action simply defers EPA’s decision on BART. 

EPA recently announced it is centralizing its violation self-disclosure process in a new eDisclosure portal.  Through the portal, registered users will be able to disclose routine violation and their corrections to EPA.  The portal is based on EPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” policy issued in 2000 to encourage voluntary discovery, prompt disclosure and correction of violations by incentivizing the regulated community with potential penalty reductions for self-reporting.

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.