On January 25, 2018, EPA’s Assistant Administrator, William Wehrum, issued a memorandum addressing when a “major source” subject to a section 112 maximum achievable control technology (“MACT”) standard of the Clean Air Act (“CAA”) can be reclassified as an “area source,” and thus avoid any more stringent requirements that only apply to “major sources.” The memorandum departs from and supersedes EPA’s longstanding “Once in Always in” (“OIAI”) policy articulated in the May 1995 Seitz Memorandum. Under the OIAI policy, a major source of hazardous air pollutants (“HAPs”) was permanently subject to the MACT standard at the “first compliance date” of the standard even if the source was able to later limit its potential to emit (“PTE”) HAPs below the major source thresholds. EPA’s new policy explains that a major source will become an area source once it takes enforceable limits on its PTE to ensure emissions cannot exceed the applicable major source thresholds for HAPS.
The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject. In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades. Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation. Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species. Thus, the outcome of this case has significant implications for these 2016 rules.
Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction. Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite. In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.
Today, in a much-anticipated decision, the Supreme Court unanimously held that district courts are the proper courts to hear challenges to the “Waters of the United States” (“WOTUS”) Rule, an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction. The decision overturns a Sixth Circuit ruling that federal appeals courts maintain the proper jurisdiction to hear such challenges. Writing for the Court, Justice Sotomayor found that “Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.”
On January 3, 2018, the Environmental Protection Agency (EPA) published the User Fees for the Electronic Hazardous Waste Manifest System and Amendments to Manifest Regulations Final Rule (“User Fee Rule” or “Rule”) in the Federal Register (83 Federal Register 420). While the User Fee Rule does not set e-Manifest user fees, it gives EPA authority to establish user fees and establishes the methodology for EPA to do so. The Rule becomes effective June 30, 2018.
This afternoon, EPA announced the details on the three anticipated “listening sessions” in connection with the Agency’s proposed repeal of the Clean Power Plan (CPP). At the same time, EPA noted that it would reopen the comment period on the proposal until April 26th. The comments are currently due to EPA by next Tuesday, January 16th. EPA’s Clean Power Plan webpage has been updated to reflect the effective extension of the comment period until late April. The listening sessions will be held in Kansas City, MO, San Francisco, CA and Gillette WY as follows:
Kansas City Listening Session
Date: Wednesday, February 21, 2018
Time: 10 a.m. until 8 p.m., Central Standard Time (CST)
Location: U.S. Department of Agriculture Beacon Complex, 6501 Beacon Drive, Kansas City, Missouri 64133
San Francisco Listening Session
Date: Wednesday, February 28, 2018
Time: 8:30 a.m. until 7:30 p.m., Pacific Standard Time (PST)
Location: San Francisco Main Library, Koret Auditorium, 30 Grove Street entrance, San Francisco, California 94102
Gillette Listening Session
Date: Tuesday, March 27, 2018
Time: 9 a.m. until 8 p.m., Mountain Daylight Time (MDT)
Location: Gillette College Technical Education Center, 3251 South 4-J Road, Gillette, Wyoming 82718
On January 9, 2018, the EPA published the third round of final area designations under the 2010 SO2 NAAQS. In this round, the EPA identified six (6) nonattainment areas located in Florida, Indiana, Louisiana, Puerto Rico and Guam. EPA designated 23 areas as unclassifiable and all other areas as attainment/unclassifiable. The primary focus in this round was on those areas electing to rely on ambient air quality modeling to assess attainment with the standard.
On January 8, the Supreme Court denied Murray Energy’s petition for appeal of a Fourth Circuit decision that had rejected its efforts to obtain judicial enforcement of Section 321 of the Clean Air Act (“CAA”). Section 321(a) requires EPA to evaluate the potential for plant closures and job losses resulting from regulation and/or enforcement under the Act. The decision marks the end of a legal challenge brought by Murray Energy and 15 states in October 2016, in which the Northern District of West Virginia strongly rebuked EPA’s failure to comply with the statute (as previously reported here). In a 27-page opinion, the district court took EPA to task, finding that the Agency’s longstanding failure to comply with § 321 evidenced a “continued hostility” to the provision. The district court required the Agency to establish a system by the end of 2017 for conducting the evaluations.
On January 9, 2018, EPA released the pre-publication copy of its annual civil monetary penalty adjustment. The final rule is scheduled to be published in the Federal Register on January 10, 2018. The adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act, which requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. In the past, EPA only adjusted penalty levels for inflation once every several years. Beginning in 2017, however, EPA and other federal agencies must adjust their penalty amounts every year. Continue Reading EPA Publishes Updated Civil Penalty Amounts
Last summer, EPA finalized the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule), which we previously reported on here . As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA for chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The deadline for submittal of the required reports by manufacturers – February 7, 2018, is quickly approaching.