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.

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.

On January 8, 2018, the United States Supreme Court heard oral argument on the decision issued by Special Master Ralph Lancaster in the long-running dispute between Florida and Georgia over the fate of water use in the Apalachicola-Chattahoochee-Flint (ACF) Basin.  The Special Master sided with Georgia, less on the merits than for procedural reasons, finding that Florida had failed to meet its burden of showing how Florida’s proposed remedy of a consumption cap on Georgia would be effective to curb alleged excessive water use by Georgia due to control of impoundments on the Chattahoochee River by the U.S. Army Corps of Engineers (“the Corps”), not a party to the suit.

On December 20, 2017, EPA took the next step in completing the area designation process under the 2015 ozone standard.   Specifically, the Agency issued “120-day letters” to the states proposing designations for all areas of the U.S. that were not designated as part of the Agency’s November 6, 2017 rulemaking designating 2,646 areas as either attainment or unclassifiable under the 2015 ozone standard.  Under the Clean Air Act, states recommend area designations and if EPA intends to modify a state’s recommended designation, it must notify the state no later than 120 days prior to making the final designation and give the state an opportunity to respond.

On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.

The D.C. Circuit Court of Appeals has ordered EPA, in the context of ongoing litigation regarding the issuance of designations under the 2015 ozone standard, to present a timetable for designating the remaining areas of the country that were not addressed in the Agency’s November 16, 2017 final rule. In…

On December 7, 2017, EPA Administrator Scott Pruitt issued a memorandum explaining EPA’s future approach concerning enforcement of the New Source review program, considering the uncertainty created by the Sixth Circuit’s decisions in the DTE NSR cases (U.S. v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013) and U.S. v. DTE, 845 F.3d 735 (6th Cir. 2017)). NSR requires new major sources and major modifications at existing sources to obtain a permit before construction commences. In determining whether a permit is needed for a major modification, owners or operators are required to conduct a pre-construction applicability analysis to determine whether the proposed project would cause a significant emission increase, calculated using the actual-to-projected-actual applicability test that compares past actual emissions to future projected emissions. The memorandum’s main focus is on circumstances where sources have used that test in determining NSR applicability and the pre- and post-project source obligations.

The GeoProfessional Business Association (GBA) – formerly known as ASFE – has released a new study on the standard of care for conducting Phase I environmental site assessments. This document is the fourth in a series of studies the organization has produced since the inception of the due diligence process in the early 1990’s. The study is an evaluation of approximately 200 Phase I reports from across the country, written between 2007 and 2010. The results of the study will be a valuable tool in determining whether a Phase I conducted during that time period meets the standard of care or not.