Atlanta Partner Mack McGuffey authors an article in the February 2016 issue of Natural Gas & Electricity, a Wiley publication. The article, titled “2016 to Be Litigation-Heavy as Obama EPA Wraps Up Its Air Agenda”, discusses the litigation ensuing over EPA’s Clean Power Plan and other controversial air quality …

On November 9, 2015, EPA published a proposal to revise its Clean Air Act refrigerant regulations under the stratospheric ozone protection program, which cover all appliances containing a refrigerant, including HVAC systems, commercial food refrigeration appliances, and industrial cooling processes.  The proposal would significantly increase the regulatory burden associated with those regulations in two ways.

On Tuesday, January 5, 2016, EPA partially approved and partially disapproved a revision to the Texas “regional haze” State Implementation Plan (SIP). The regional haze program is intended to protect and improve visibility at national parks and requires states to write plans for accomplishing those goals. While EPA has disapproved dozens of states’ regional haze SIPs in the past, primarily based on the state’s determination of “Best Available Retrofit Technology” (BART), this action simply defers EPA’s decision on BART. 

In 2011, U.S. EPA issued guidance concluding that generators of p-listed pharmaceutical wastes did not need to count the weight of non-RCRA empty containers in determining their generator status. Instead, EPA determined that “it is only the residue in the non-RCRA empty container that is considered a p-listed hazardous waste; the container itself is not a hazardous waste.” Containers that Once Held P Listed Pharmaceuticals, November 4, 2011.  This EPA memo was long-awaited by retail pharmacies and other healthcare facilities, as it provided a mechanism to forego counting containers that previously held warfarin-family pharmaceuticals toward generator status.  This was particularly helpful, given that where a facility accumulates more than 1 kilogram (2.2 pounds) of acute hazardous waste at any one time, the facility is subject to stringent Large Quantity Generator of hazardous waste (LQG) regulations.  While such generators may still be subject to LQG requirements based on generation of other p-listed waste such as nicotine replacement therapy products, EPA’s November 4, 2011 memo significantly reduced the likelihood that retail pharmacies and other healthcare facilities would be subject to LQG regulation.

Each year, the U.S. Fish and Wildlife Service (FWS) publishes its annual Candidate Notice of Review (CNOR) in the Federal Register.  The 2015 CNOR is available here, and includes the candidate species of plants and animals that FWS has deemed eligible for listing under the Endangered Species Act, but which have not yet been listed due to higher priority listings.  The 18 plants and 42 animals on the 2015 notice are the fewest number of candidate species listed since FWS began the list in 1975. This is due, in part, to litigation settlements between FWS and the Center for the Biological Diversity and WildEarth Guardians which mandated that FWS expedite their listing decisions and thereby reduce the number of candidate species on the CNOR.

EPA recently announced it is centralizing its violation self-disclosure process in a new eDisclosure portal.  Through the portal, registered users will be able to disclose routine violation and their corrections to EPA.  The portal is based on EPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” policy issued in 2000 to encourage voluntary discovery, prompt disclosure and correction of violations by incentivizing the regulated community with potential penalty reductions for self-reporting.

Atlanta lawyer Karlie Webb recently authored an article for the winter edition of the State Bar of Georgia Environmental Law Section newsletter, “Perspectives” on the EPA’s sector-specific rules for hazardous waste pharmaceuticals. She discusses the proposed requirements and the impacts on healthcare facilities. To read the article, click here.

On December 17, 2015, the U.S. Senate overwhelmingly passed legislation that would overhaul the Toxic Substances Control Act — S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.”  S. 697 is sponsored by Sens. Tom Udall, D-N.M., and David Vitter, R-La., with 60 bipartisan cosponsors, representing 38 states.

In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions.

The White House has issued a Presidential Memorandum to several federal agencies regarding policies and principles for mitigating environmental impacts from land and water-disturbing activities. Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment was published in early November and incorporates a new “net benefit goal” expectation for mitigation in federal projects or projects requiring approval by these federal agencies. The President also set a backstop goal for mitigation of “no net loss for natural resources the agency manages that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.” In addition to the “net benefit goal” the guidance focuses on landscape-scale planning, habitat mitigation banks, and advance conservation measures.