On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program.  If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.

In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval.  EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined.  Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level.  EPA plans to issue proposals to address these topics in 2019.  Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date.
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On June 26, 2019, EPA published a Notice of Proposed Rulemaking requesting comment on a proposed Maximum Contaminant Level (MCL) for perchlorate under the Safe Drinking Water Act (SDWA). Perchlorate is both a man-made and naturally-occurring chemical, most commonly found in industrial operations associated with the use or manufacture of rocket fuel, missiles and fireworks. Perchlorate inhibits the uptake of iodide to the thyroid and has been detected in certain public water supply systems, primarily in the western United States. In its Notice, EPA proposes an MCL of 56 µg/L, but at the same time requests public comment on whether the MCL should be set at a higher or lower standard, or whether the agency should re-evaluate its decision to regulate perchlorate based on updated data. This rule, if finalized, could affect thousands of public water systems that would be required to comply with the new standard, as well as state and tribal agencies responsible for drinking water regulatory development and enforcement.
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The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus.  Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance.  EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources.  In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary.
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On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
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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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