On February 6, 2018, David Ross, EPA’s Assistant Administrator for the Office of Water issued a new guidance memorandum updating the Agency’s Water Quality Trading Policy. The new guidance strongly supports and promotes trading and flexibility and clarifies EPA’s previous guidance, stating, for example, that its 2003 Water Quality Trading Policy “may be too prescriptive to be widely effective and implementable.” The guidance announces six “Market-Based Principles” designed to encourage and promote the development and implementation of market-based pollutant reduction programs. The six principles include:
On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their 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. Continue Reading EPA and OSHA Publish Annual Inflation Adjustments to Civil Penalty Amounts
The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404. The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.
EPA recently released the pre-publication version of its proposed National Compliance Initiatives for FY 2020-2023. Notably, consistent with Susan Bodine’s August 21, 2018 Memorandum “Transition from National Enforcement Initiatives to National Compliance Initiatives,” EPA has extended the cycle from two years to four years, moved away from sector targeting, and updated its focus for FY 2020-2023 from enforcement to compliance initiatives. EPA believes this adjusted focus will “better convey the overarching goal of increased compliance and the use of not only enforcement actions, but the full range of compliance assurance tools.”
On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing Federal Energy Regulatory Commission’s relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted application for water quality certification within one year from when it was initially filed in 2006. The applicant for many years had followed, at the request of the States, the common industry practice of “withdraw-and-resubmit” of its water quality certification application in an attempt to annually reset the one-year time period for the States to act, as established under CWA section 401. The D.C. Circuit in Hoopa Valley Tribe invalidated this practice as a means of resetting the statutory clock, instead holding that the clear text of CWA establishes that “a full year is the absolute maximum” time for a state to decide on a water quality certification application. Continue Reading D.C. Circuit Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications
EPA has reset the public hearing date on its proposed revisions to the New Source Performance Standards governing CO2 emissions from new, modified and reconstructed Electric Generating Units (EGUs). The hearing, originally scheduled for January 8th and then postponed until January 30th, is now scheduled for February 14th in Washington, D.C. Under the Clean Air Act, EPA is required to keep the record open for 30 days after the public hearing. Therefore, EPA is also extending the deadline for written comments from February 19th to March 18th. The announcement has been posted on EPA’s website and will also be published in the Federal Register.
Troutman Sanders partners Douglas Henderson and Lindsey Mann and associate Nicholas Howell had an Insight piece published in Bloomberg Law titled, “Contamination ‘Issue’ Class Actions—Recent Certification Realities.”
In the article, the authors review the confusing outcomes and mistaken promise of environmental “issue” class actions under Rule 23(c). Two cases from 2018—involving virtually identical facts—reach fundamentally different conclusions on whether such “issue” classes are appropriate in environmental exposure cases.
The authors note: “[i]f the Behr-Dayton approach stands, claim-wide predominance and superiority become aspirational, rather than the requirements they were intended to be, so long as the ‘issue’ class will, in the court’s estimation, advance the litigation or push the parties to settle.” Based on the these cases, Henderson, Mann and Howell conclude Rule 23(c) “issue” class actions should not be interpreted to resuscitate flawed putative classes under Rule 23(b).
To read the entire article, click here.
In the last month of 2018, EPA released two proposals that it claims will have no immediate effect—revised CO2 standards for new coal-fired power plants that EPA does not expect anyone to build, and a determination that it is not “appropriate and necessary” to have a mercury rule that it nevertheless plans to keep on the books. The question many may be asking is why EPA would issue two highly controversial rules if they won’t have any practical effect? The answer may lie in the precedent they will set.
Troutman Sanders partner Chuck Sensiba and Associate Morgan Gerard authored the main feature article in the January 2019 issue of The Water Report, a monthly publication focused on federal and state water issues. In the article, Sensiba and Gerard discuss how a rule proposed by the Trump Administration would significantly narrow the number of waterways and wetlands that fall within the jurisdictional reach of the Clean Water Act (CWA).
“The practical implications of the Proposed Rule for project proponents are that ephemeral streams and many ponds and ditches used in agricultural, industrial, and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is the public comment period, and the Agencies will accept comments until February 26, 2019.”
To read the entire article, click here.
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”). The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect. The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.