The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.

Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance

A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.

Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

The new hazardous waste pharmaceutical management standards established by EPA’s Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine (“Rule”) are already effective in some states. Other states must adopt the rule by July 1, 2021 or, if a statutory amendment is required prior to the state’s adoption, by July 1, 2022. Based on this, all “healthcare facilities”[1] and “reverse distributors,”[2] as defined by the Rule, will ultimately be required to comply with the Rule (as adopted in each state).
Continue Reading “Unauthorized Waste” Reporting Under EPA’s Hazardous Pharmaceutical Waste Rule

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices

On Tuesday, March 10, the comment period closed on the Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking (NOPR) to update its regulations implementing the National Environmental Policy Act (NEPA).

CEQ published its proposed rule on January 10, 2020 (see January 15, 2020 edition of the Environmental Law & Policy Monitor). CEQ’s proposed rule aims to update its regulations—which have not been modified since they were released in 1978—by streamlining the NEPA process and instituting changes to reduce delays and paperwork, and modifying the scope of agencies review of proposed actions.


Continue Reading Comments Filed on CEQ’s Proposed NEPA Rule

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

Continue Reading Environmental Compliance in the Wake of the Coronavirus

On March 9, 2020, EPA published its final “risk and technology review” for the standards it adopted in 2004 to regulate emissions of hazardous air pollutant (HAP) from natural gas-fired combustion turbines. Like most other such reviews, EPA confirmed that the risks presented by HAP emissions from the source category are acceptable with an ample margin of safety. EPA also concluded that there are no new cost-effective controls for reducing those emissions.

Continue Reading EPA Review of Gas Turbines Confirms Ample Margin of Safety, Even Without Controls

On January 31, 2020, California announced proposed changes to warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, by releasing a Notice of Proposed Rulemaking (“Proposal”). Among other things, the changes are intended to clarify on-line warning requirements (through a website or using a mobile phone app) and catalog warning requirements. The Proposal also includes revised requirements specific to the sale of alcoholic beverages through delivery services, reflecting the provisions of an enforcement action settlement currently being negotiated by the Attorney General.

Continue Reading California Proposes Changes to Online and Alcoholic Beverage Delivery Warning Requirements Under Proposition 65

On July 29, EPA Administrator Andrew Wheeler signed a long-anticipated proposal to amend EPA’s 2015 Coal Combustion Residuals (CCR) rule.

EPA’s proposal includes a number of changes, including the establishment of an alternate risk-based groundwater protection standard for boron, revisions to the annual groundwater monitoring and corrective action report requirements, and revisions to the CCR website requirements. The proposal also includes changes in response to the U.S. Court of Appeals for the D.C. Circuit’s August 21, 2018 remand of certain CCR rule provisions. These amendments address the “beneficial use” definition and CCR pile requirements.
Continue Reading EPA Proposes Second Round of CCR Rule Amendments

FERC’s consideration of indirect environmental impacts of the projects it certifies has been heavily debated as the concerns over climate change increase.  Both the National Environmental Policy Act (NEPA) and Natural Gas Act (NGA) require that FERC consider how an interstate natural gas pipeline directly and indirectly affects the human environment.  Although consideration of direct impacts may be a less controversial topic, FERC’s approach with respect to indirect impacts[1] has proven to be more complex.  It is particularly relevant in light of the Council on Environmental Quality’s (CEQ’s) June 2019 proposed guidance, directing how federal agencies should assess project-related greenhouse gas emissions, discussed in detail here and here.  The guidance suggest that FERC should employ a “rule of reason” when considering impacts of greenhouse gas emissions and if FERC lacks adequate information about these emissions, it does not need to quantify them.  This recommended approach, however, seems to conflict with how the D.C. Circuit interpreted FERC’s duty in analyzing greenhouse gas and other indirect emissions in its earlier June 2019 decision Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019). 
Continue Reading D.C. Circuit Suggests FERC Should Try to Quantify Indirect Environmental Impacts of Pipeline Projects