Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.

On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its intent to publish a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Publication will initiate a 60-day notice and comment period that represents the first step toward the adoption of Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, two of the best-understood and most common compounds under the umbrella of perfluoroalkyl substances (PFAS).

The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

On February 5, 2020, EPA issued a final rule revising the petition provisions of the Title V permitting program. Under the CAA Title V program, permitting authorities must submit proposed Title V permits to the EPA administrator for a 45-day review before issuing the final permit. If the administrator has no objections within this period, any person may petition the administrator within 60 days thereafter to ask EPA to object to the permit.

On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.

Troutman Sanders associate Andy Flavin authored an article published in Law360 titled “Getting State Approvals for Energy Storage Siting.” In the article, Andy explains why energy storage developers should carefully assess whether their project requires approval from state siting regulators and the possible implications. He wrote:

States normally

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On January 31, 2020, California announced proposed changes to warning requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, by releasing a Notice of Proposed Rulemaking (“Proposal”). Among other things, the changes are intended to clarify on-line warning requirements (through a website or using a mobile phone app) and catalog warning requirements. The Proposal also includes revised requirements specific to the sale of alcoholic beverages through delivery services, reflecting the provisions of an enforcement action settlement currently being negotiated by the Attorney General.

New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).

On January 28, in Center for Biological Diversity v. Everson, No. 1:15-cv-00477 (D.D.C. 2020), the U.S. District Court for the District of Columbia remanded, but did not vacate, the United States Fish and Wildlife Services’ (“USFWS”) April 2015 decision to list the northern long-eared bat (“NLEB”) as threatened under the Endangered Species Act (“ESA”). The court also vacated a component of the USFWS and National Marine Fisheries Services (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered in a “significant portion of its range” once a determination has been made that the species is threatened throughout “all of its range.” The SPR Policy, issued in 2014, has formed the basis for other listing decisions and thus its vacatur has implications beyond the NLEB.