The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.

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.

On January 8, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the short-form warning regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. In August 2018, new Proposition 65 warning regulations became effective that significantly changed the required language and manner in which Proposition 65 warnings should be provided. Most significant was the new requirement to specifically list at least one chemical that a consumer could be exposed to in the warning. These regulations, however, provided an alternative warning option — dubbed the “short-form” warning — which does not require the identification of any chemicals in the warning. While OEHHA originally may have intended the use of the short-form warning only on products where space was limited, the actual terms of the regulation do not prohibit the use on products where space is not an issue.

In light of the potential for distribution of the vaccine, employers are revisiting their plans for return to work and the many challenges that office re-openings might bring, including the requirement that employees wear personal protective equipment (PPE), such as masks and gloves, and the disposal of such equipment. Most companies (non-health care or COVID-19 treatment facilities) generally assume that masks and gloves are simply solid waste and can go in dumpsters per Occupational Safety and Health Administration (OSHA) and Center for Disease Control (CDC) guidelines. While this designation may be appropriate (based on the state and local requirements), however, it is prudent for even non-health-care-related employers to have a plan in place to maintain a clean workplace and manage PPE disposal procedures if an employee exhibits COVID-19 symptoms. Moreover, many workplaces are contemplating the potential of offering COVID-19 testing and vaccination on-site, and employers interested in offering such services should be mindful of the potential for more stringent waste disposal requirements for used PPE. As you might expect, there are no straight-forward answers with the new phenomenon of PPE and COVID-19 as the federal Medical Waste Tracking Act of 1988 expired in 1991. Whether PPE is a medical waste will generally depend on a state’s rules and may depend on an employer’s knowledge about the potential for COVID-19 exposure.

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.

The U.S. Fish and Wildlife Service (FWS) continues its push to finalize pending rules before the new administration takes office next year. Following a publication of a final rule defining “habitat” under the Endangered Species Act (ESA) earlier this week, today the agency published a final rule establishing the agency’s process for excluding certain lands from critical habitat designations.

In accordance with a settlement between the U.S. Fish and Wildlife Service (FWS) and the Center for Biological Diversity (CBD), the FWS was required to make an Endangered Species Act (ESA) listing determination for the monarch butterfly by December 15, 2020. On December 17, 2020, the FWS announced that it had determined that adding the monarch butterfly to the list of threatened and endangered species is “warranted but precluded” by higher-priority listing actions.

In a case involving the question of when unoccupied habitat may be designated “critical habitat” under the Endangered Species Act (ESA), the U.S. Supreme Court held that critical habitat land must first be habitat before it could be “critical habitat.” Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018). Given that neither the ESA nor its implementing regulations define habitat, the Court remanded the case for further consideration. In response to this opinion, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) issued a final rule defining habitat on December 16, 2020. The rule becomes effective on January 15, 2021.

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.

On the evening of November 30, United States Environmental Protection Agency (EPA) announced a new interim strategy to address per- and polyfluoroalkyl substances (PFAS) in the environment through EPA-issued wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES). While some states have already begun regulating PFAS in wastewater and stormwater discharges, this policy represents a shift by EPA from focusing solely on PFAS contamination of drinking water and standard setting under the Safe Drinking Water Act, to detailing an interim NPDES permitting strategy under the Clean Water Act to address PFAS. The new interim strategy’s primary recommendation is for permit writers to consider “phased-in monitoring” of PFAS compounds.