The EPA’s “Secret Science” rule establishing new standards for consideration of certain “pivotal” scientific studies, which was slated to go into effect on January 6, 2021, has been vacated and remanded by the U.S. District Court for the District of Montana. The decision follows one from a few days prior in which the court rejected EPA’s attempt to make the rule immediately effective. Notably, both decisions rely on the same basic principle — that the rule is not merely procedural, as EPA claimed, but substantive. That determination could be important for other rules that the Trump EPA viewed as procedural in nature, but that have been challenged as having substantive effect.
Continue Reading UPDATE: Montana District Court Vacates EPA’s “Secret Science” Rule

Update: The District Court of Montana vacated the “Secret Science” rule on February 1, 2021. An update including analysis of that decision is available here.

The U.S. Environmental Protection Agency (EPA) issued a final rule establishing new standards for consideration of certain “pivotal” scientific studies, requiring that EPA give greater consideration to studies relying on dose-response data that has been made “available in a manner sufficient for independent validation.” Commonly known as the “Secret Science” rule, this measure was published in its final form under the title “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.” The rule went into effect upon publication on January 6, 2021.


Continue Reading EPA Issues “Secret Science” Rule to Promote Transparency through Public Access to Dose-Response Data

Ross Brings Unique Background of Federal, State and Private Sector Experience to Firm, Expanding Environmental and Natural Resources Practice

WASHINGTON (January 11, 2021) – Dave Ross, a longtime public servant who has held key leadership positions in federal and state environmental agencies, has joined Troutman Pepper as a partner in the firm’s Environmental and Natural Resources Practice Group in Washington, D.C. Ross’ policy background, along with a distinctive combination of federal, state and private sector experience, will significantly expand the capabilities of the firm’s 50-attorney national environmental practice, which serves clients in a variety of industries across the United States.


Continue Reading Dave Ross, Longtime Public Servant in Federal and State Environmental Agencies, Joins Troutman Pepper

On December 23, the U.S. Environmental Protection Agency (EPA) published its annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01182.

Continue Reading EPA Publishes Annual Inflation Adjustments to Civil Penalty Amounts

On December 8, the United States Environmental Protection Agency (EPA or the Agency) issued draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in County of Maui v. Hawaii Wildlife Foundation, 140 S. Ct. 1462 (2020). The guidance is intended to help both members of the regulated community and permitting authorities determine when a National Pollutant Discharge Elimination System (NPDES) permit may be required for discharges from point sources that reach navigable waters through groundwater. Comments on the draft guidance are due 30 days after its publication in the Federal Register.

Continue Reading EPA Seeks to Clarify Application of Maui and “Functional Equivalent” Test

The COVID-19 pandemic has elevated fiscal concerns of water and sewer service providers, with many states imposing a moratorium on the collection of delinquent bills and the termination of service. The affordability of water and sewer service has also been a central topic in environmental justice discussions. In the midst of this heightened interest, the United States Environmental Protection Agency (“EPA”) released its long-awaited proposed updates to its Clean Water Act (“CWA”) affordability guidance. The pre-publication version of its 2020 Financial Capability Assessment for CWA Obligations (“2020 FCA”) was released on September 15, 2020. The proposal builds on EPA’s prior guidance, issued in 1997, as well as its 2014 Financial Capability Assessment Framework.  The purpose of the guidance is to establish criteria for EPA consideration of the impact of water quality, stormwater, and drinking water requirements on affordability. This information can then be used to prioritize different regulatory requirements and establish longer compliance schedules in permits and enforcement actions.

Continue Reading EPA Issues Long-Awaited Update to CWA Financial Capability Assessment

The Illinois Environmental Protection Agency (IEPA) released new proposed groundwater quality standards for select per- and polyfluoroalkyl substances (PFAS). The new standards were released as a discussion draft of proposed amendments to the groundwater quality rules under 35 Ill. Adm. Code Part 620, regulating the following PFAS types:


Continue Reading Illinois EPA Proposes PFAS Standards

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.
Continue Reading New Jersey Passes Significant Environmental Justice Legislation

On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here.
Continue Reading Illinois Pollution Control Board Schedules Second Round of Public Hearings on Proposed Regulations for Coal Ash Ponds