On February 7, 2019, EPA published its proposed revised Supplemental Cost Finding for the Mercury and Air Toxics Standards (MATS) and risk and technology review. The proposal re-evaluates the cost of complying with the MATS rule for coal- and oil-fired power plants, and the associated benefits of regulating hazardous air pollutant (HAP) emissions from these sources. Based on its revised analysis, EPA has determined that it is not “appropriate and necessary” to regulate HAP emissions from power plants under Section 112 of the Clean Air Act.
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The comment period has now begun on EPA’s proposal for replacing the Clean Power Plan, named the “Affordable Clean Energy”—or “ACE”—rule.  The rule was published in the Federal Register on August 31. And there is plenty to keep commenters busy over the next 60 days, given that EPA expressly identified 75 distinct requests for comment,

On June 7, 2018, U.S. EPA issued an advance notice of proposed rulemaking (“ANPR”) aimed at developing a consistent and transparent interpretation of cost and benefits consideration in regulatory analyses, including regulations promulgated pursuant to the Clean Air Act, Clean Water Act, Safe Drinking Water Act and other statutes.  EPA will accept comments on the ANPR for 30 days after it is published in the Federal Register. 

Assessing costs and benefits has been a contentious part of EPA rulemakings.  For instance, in the Mercury and Air Toxics (MATS) rulemaking, EPA determined that the monetized cost of the rule would be $9.6 billion annually whereas the monetized benefit would be $4-6 million annually.  EPA determined that MATS was nevertheless “appropriate” regulation, but the Supreme Court reversed, ruling that the agency had improperly refused to consider costs.  While EPA, during the Obama administration, subsequently modified its “appropriate” determination for the MATS rule, it has been speculated that the Trump administration might take some further action in that regard.
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A federal judge last week upheld the constitutionality of the Congressional Review Act (CRA), a law that Congress has used recently to overturn more than a dozen federal regulations from the Obama Administration.  Under the CRA, Congress, by a majority vote, can disapprove a federal regulation if it does so within sixty legislative days after the regulation was adopted.  Once Congress disapproves a regulation, it cannot be readopted in substantially similar form.

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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.


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On January 9, 2018, EPA released the pre-publication copy of its annual civil monetary penalty adjustment.  The final rule is scheduled to be published in the Federal Register on January 10, 2018.  The adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act, which requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts.  In the past, EPA only adjusted penalty levels for inflation once every several years.  Beginning in 2017, however, EPA and other federal agencies must adjust their penalty amounts every year.
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The GeoProfessional Business Association (GBA) – formerly known as ASFE – has released a new study on the standard of care for conducting Phase I environmental site assessments. This document is the fourth in a series of studies the organization has produced since the inception of the due diligence process in the early 1990’s. The study is an evaluation of approximately 200 Phase I reports from across the country, written between 2007 and 2010. The results of the study will be a valuable tool in determining whether a Phase I conducted during that time period meets the standard of care or not.

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On October 10, EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan (CPP).  The CPP was one of the Obama Administration’s signature environmental regulatory initiatives, designed to reduce CO2 emissions from fossil-fueled electric generating stations.  The repeal proposal asks for public comments within 60 days from the day it is published in the Federal Register.  It is expected that it will be published relatively quickly in the coming weeks.

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