On March 8, 2019, the Environmental Protection Agency, Department of the Army, and Army Corps of Engineers petitioned the U.S. Courts of Appeals for the 4th and 9th Circuits to voluntarily dismiss their appeals of the Suspension rule. This is yet another development in the litigation surrounding the 2015 Waters of the United States Rule (WOTUS). Our previous blog posts on this topic can be accessed here. Continue Reading EPA & Army Corps Request Voluntary Dismissal of Their WOTUS-Related Appeal
On March 13, 2019, a three-judge panel for the D.C. Circuit Court of Appeals granted EPA’s motion for voluntary remand without vacatur of the Agency’s recent revisions to the Coal Combustion Residuals (CCR) rule, commonly referred to as “Phase One, Part One.” The D.C. Circuit’s Order comes in response to dueling arguments EPA and a coalition of environmental groups presented regarding Phase One, Part One’s future in light of the Court’s recent vacatur and remand of portions of the CCR rule in USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018).
Significantly, the D.C. Circuit’s Order leaves in place Phase One, Part One’s October 2020 deadline for CCR surface impoundments to stop receiving CCR after triggering closure. In granting EPA’s motion, the Court stated that EPA demonstrated that disruptive consequences would have resulted from vacatur.
EPA argued in its December 2018 motion that vacatur would have significant detrimental impacts, would require certain surface impoundments to immediately begin closing, and would require entities to immediately arrange for alternative disposal capacity for CCR and non-CCR wastestreams. EPA further argued in its response to the environmental groups’ motion that immediate compliance would not be feasible in many instances, and that vacating Phase One, Part One would require many power plants to cease operating for at least some period of time, which may have led to grid destabilization.
The D.C. Circuit’s decision is a significant victory for electric utilities. It allows them to continue closing surface impoundments based on the currently-in-place timeframe while EPA revisits the rule.
The D.C. Circuit expressed its confidence in EPA to “expedite its rulemaking proceedings on remand to the fullest extent possible.” We will provide updates regarding the remand process as they become available. For more information regarding the D.C. Circuit’s Order or other issues related to CCR, please contact Holly Hill or Buck Dixon.
At a public hearing on March 6, 2019, the California State Water Resources Control Board announced a “Phased Investigation Plan” for perfluoroalkyl substances (PFAS). The Investigation Plan represents a coordinated effort by the Water Board to identify PFAS in discharges and drinking water sources across California. This new initiative leverages the Board’s enforcement and permitting powers to order testing and will proceed in three phases. Under each phase, the Water Board will issue orders to the covered facilities requiring at least one round of testing of their discharge to identify whether PFAS are present.
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. Continue Reading EPA Schedules Public Hearing and Extends Comment Period for Proposed MATS Rulemaking
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
Today, February 22, 2019, EPA published the final “Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine” rule in the Federal Register. The final rule becomes effective at the federal level on August 21, 2019. As we previously reported, EPA released a prepublication copy of the final rule on December 11, 2018.
The final rule, applicable to “healthcare facilities” and “reverse distributors,” establishes new sector-specific regulations in 40 C.F.R. Part 266 Subpart P for managing hazardous waste pharmaceuticals pursuant to the Resource Conservation and Recovery Act (RCRA). Among other provisions, the regulations include a prohibition on disposing hazardous waste pharmaceuticals in sewer systems (i.e., down the drain), a limited carve-out for hazardous waste pharmaceuticals that are also DEA controlled substances, and new management standards related to reverse distribution of prescription pharmaceuticals. The final rule also clarifies that nonprescription pharmaceuticals that are sent to reverse logistics facilities (distinguished from reverse distributors) are not yet a waste at the healthcare facility where there is a reasonable expectation of being used/reused or reclaimed. The final rule also excludes FDA-approved, over-the-counter nicotine replacement therapy products—which include gums, lozenges, and patches—from regulation as an acute hazardous waste.
For an in-depth analysis of the final rule and discussion about state adoption, please see our January 4, 2019 Law360 article, “A Closer Look at New Pharmaceutical Hazardous Waste Regs.”
Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as to the question of “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
The Court did not take action on the other pending petition regarding this issue in Upstate Forever v. Kinder Morgan. However, the Supreme Court has shown interest in the Upstate Forever case as well, asking the Solicitor General to file a brief expressing the views of the United States. The Solicitor General filed its brief on January 3, 2019 stating that Supreme Court review is warranted in the case but asking the Court to hold the petition in Upstate Forever until the Court’s disposition of the Count of Maui petition, which is the course the Supreme Court has now taken. For now, the Supreme Court will hear at least one case on this issue which is not unexpected given the Circuit split between the Fourth, Sixth, and Ninth Circuits.
EPA recently released its FY 2018 Enforcement Results highlighting the environmental benefits reaped from its enforcement and compliance assurance actions over the past year. This year’s report shows a marked shift away from previous years’ reports, which focused on the number of cases initiated and resolved and the amount of penalties imposed. Overall enforcement numbers declined over previous years, with a continuing decline in inspections from 10,612 in FY 2018 compared to 11,941 in FY 2017, fewer cases initiated and concluded, and few penalties imposed from $69.4 million in FY 2018 compared to $1.67 billion in FY 2017. To contextualize the penalty reduction, EPA notes that annual penalty totals are often skewed by one or two large cases in a particular year, such as the Volkswagen mobile source defeat device enforcement with $1.45 billion in penalties in FY 2017 and the $5.7 billion in penalties assessed in FY 2016 for the BP oil spill. Despite other reductions, the report shows an increase in enforcement of environmental crimes for FY 2018.
On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions. The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA). Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives. Below we summarize the highlights of the 60+ page Plan.
The Trump Administration’s proposed rule regarding the definition of Waters of the United States under the Clean Water Act (“WOTUS Rule”) was published yesterday in the Federal Register. The EPA and U.S. Army Corps of Engineers will receive comments on the proposal until April 15, 2019. As covered in a previous blog post, a pre-publication version of the proposed rule was initially released in December 2018, which is substantively the same as the version published yesterday.