EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” On June 7, 2016, EPA released its final version of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance). EPA previously released a draft version of this guidance on May 9, 2013.  The new guidance complements EPA’s Guidance on Considering Environmental Justice During the Development of Regulatory Actions, issued in May 2015, which provides direction on when EJ should be considered during the development of a “regulatory action,” and begins to address the issue of how to do so in an analytical fashion. A “regulatory action” is “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”

A recent Eight Circuit decision highlights the difficulties in obtaining class action status in toxic tort actions. In Ebert, et al. v. General Mills, Inc., Class Action Plaintiffs alleged that General Mills released TCE onto the ground and into the environment causing the TCE in soil vapors to threaten homes and businesses in the surrounding neighborhood. 

In 2014, EPA issued a revised definition of solid waste rule (“Final DSW Rule”). The Final DSW Rule revised certain RCRA recycling exemptions that were first promulgated as part of a 2008 rulemaking (“2008 DSW Rule”). One of the revisions mandates the use of all of the following four factors for determining whether a recycling activity is legitimate:

Today, Friday, June 3, 2016, EPA published in the Federal Register the final rule setting New Source Performance Standards (NSPS) regulating methane emissions from the oil and natural gas industry.

EPA also published a notice soliciting public comments on its proposed information collection request for existing oil and natural gas facilities. This marks the first step in developing methane standards for existing sources.

The Georgia Department of Environmental Protection (“EPD”) released a draft “Coal Combustion Residuals” rule on May 12, 2016 (“draft State CCR Rule”).  EPD solicited comments on the draft rule until May 24, 2016.  The draft State CCR Rule builds on the federal Coal Combustion Residuals Rule (“federal CCR Rule”), which was released by the U.S. Environmental Protection Agency (“EPA”) last spring. 

In a unanimous decision issued today, the Supreme Court in Army Corps of Engineers v. Hawkes found that approved jurisdictional determinations (JDs) issued by the Army Corps may be challenged in federal district court under the Administrative Procedure Act. A copy of the decision is available here.

The U.S. Army Corps of Engineers is soliciting comments on the proposed reissuance and modification of the existing nationwide permits (NWPs), general conditions, and definitions. The Corps proposes to add two new NWPs and one new general condition and seeks comment on several modifications to the existing NWPs, general conditions, and definitions.

On Tuesday, May 24, compromise legislation to reform the Toxic Substances Control Act overwhelmingly passed the House of Representatives. Last week, the House and Senate announced the compromise legislation with the goal of reaching the President’s desk for signature before the Memorial Day recess.  That goal now appears to be in reach, with the White House already signaling plans to approve the legislation by calling it a “clear improvement” and a “historic advancement” for chemical safety.

The U.S. Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC) recently teamed up to enforce air and energy laws in a case involving both civil and criminal allegations under the Clean Air Act (CAA) and Federal Power Act. This marks the first criminal prosecution under the Federal Power Act.