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

The Troutman Sanders Corporate team has published the following article on COVID-19:

In a press release dated March 25, 2020, the United States Securities and Exchange Commission (the “Commission”) Chairman Jay Clayton encouraged “public companies to provide current and forward-looking information to their investors . . .” while continuing to prioritize health and safety during

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

Troutman Sanders associate Andy Flavin authored an article published in Law360 titled “Getting State Approvals for Energy Storage Siting.” In the article, Andy explains why energy storage developers should carefully assess whether their project requires approval from state siting regulators and the possible implications. He wrote:

States normally require utilities and other developers

On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well.
Continue Reading Advisory Council on Historic Preservation Issues Memo on Direct and Indirect Effects under the National Historic Preservation Act

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program. 
Continue Reading EPA Proposes Sweeping Changes to Clean Water Act Section 401 Water Quality Regulations

In Kisor v. Wilkie, 588 U.S. __ (2019), a five Justice majority substantially narrowed, but did not wholly overturn, the embattled doctrines arising from Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945).  Under the Auer deference doctrine, courts must defer to reasonable agency interpretations of their own regulations.  Several Justices and prominent scholars had criticized Auer deference on statutory, constitutional, and practical grounds.  While Auer deference lives on after Kisor, the continuing practical relevance of the doctrine is doubtful for most cases.  Further, Kisor’s limitations on Auer deference may portend a similar fate for Chevron deference, in future cases.
Continue Reading Kisor v. Wilkie: The Future of Auer Deference, With Implications For Chevron

EPA Region 6 has proposed to withdraw a 2015 finding that Texas’s State Implementation Plan (SIP) is substantially inadequate to comply with the Clean Air Act (CAA) because of state rules that provide an affirmative defense for excess air emissions that occur during upsets and unplanned maintenance, startup, and shutdown activities. 82 Fed. Reg. 17,986 (Apr. 29. 2019). Region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance. Accordingly, Region 6 is proposing to withdraw EPA’s 2015 “SSM” SIP call issued to Texas based on the finding of substantial inadequacy.
Continue Reading EPA Region 6 Withdraws “SSM” SIP Call for Texas

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.
Continue Reading EPA Publishes Interpretation of Clean Water Act’s Applicability to Pollution Traveling Through Groundwater

The Northwest Hydroelectric Association (NWHA) has appointed Troutman Sanders partner Angela Levin to serve as general counsel for a three-year term beginning February 2019. Established in 1981, the NWHA serves the hydropower industry, promoting the region’s waterpower as a clean, efficient energy while protecting the fisheries and environment. As general counsel, Levin will serve as the chief legal officer of the organization, responsible for all NWHA legal affairs, including acting as policy and regulatory counsel on federal, regional, and state issues affecting hydropower interests in the Western U.S.

“I am honored to serve the Northwest Hydroelectric Association in the capacity of general counsel,” Levin said. “The organization provides a vital voice for the hydropower community, promoting regulation and advocating for protection and advancement of existing hydropower resources, as well as responsible development of untapped hydro in the United States.”
Continue Reading Northwest Hydroelectric Association Appoints Troutman Sanders Partner Angela Levin to General Counsel