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On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program. 

On June 25, 2019, EPA released a pre-publication draft of a proposed rule allowing sources subject to Maximum Achievable Control Technology (MACT) standards under Section 112 of the Clean Air Act to voluntarily limit their emissions and avoid MACT.  The proposed rule, which formalizes and expands on a January 2018 guidance document issued by former EPA Assistant Administrator Bill Wehrum, would allow “major sources” of hazardous air pollutants (HAPs) otherwise subject to MACT standards to take an enforceable limit on HAPs and thus reclassify as “area sources.”  The rulemaking, branded by the Agency as “Major MACT to Area” (MM2A), would eliminate the Agency’s longstanding “once-in-always-in” policy, under which a facility that qualified as a major source of HAPs as of the “first substantive compliance date” of the applicable MACT standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds. 

The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus.  Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance.  EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources.  In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary.

On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions.  The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA).  Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives.  Below we summarize the highlights of the 60+ page Plan.

On April 17, 2010 EPA issued a guidance document on the implementation of significant impact levels (“SIL”) for ozone and fine particles.  Under EPA’s air pollution permitting regime known as “New Source Review,” SIL values are one way to demonstrate that a new facility or modification of an existing facility will not cause a violation of the National Ambient Air Quality Standards (“NAAQS”) or Prevention of Significant Deterioration (“PSD”) increments for a regulated pollutant.  In short, if a source’s “projected impact on air quality” is below the “SIL,” the source is deemed to have no significant impact on air quality.  If a source’s impacts are above the SIL, far more extensive modeling analyses are needed to demonstrate compliance, so the SIL helps streamline the permitting process for projects that can meet it.

Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act.  Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016).  The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation.  We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued.  U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016).  Both policies focus on using mitigation to achieve a “net conservation benefit.”

Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants.  Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured.  S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues.

On July 20, 2017, EPA published in the Federal Register two final rules intended to begin implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which significantly reformed the Toxic Substances Control Act (TSCA). The two final rules are the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Federal Register 33753 (Prioritization Rule) and Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act, 82 FR 33726 (Risk Evaluation Rule).  A third TSCA framework rule—the TSCA Inventory Notification (Active/Inactive) Requirements rule (Inventory Rule)—has not yet been published in the Federal Register, although a pre-publication version was released in June 2017 (we previously reported on all three proposed rules here).  Together, these three rules will help the Agency implement the extensive reforms set out in motion by the Lautenberg Act.

The Prioritization Rule and the Risk Evaluation Rule will become effective on September 18, 2017. Upon publication of the Active/Inactive Final Rule in the Federal Register – which EPA has indicated will become effective upon publication – a 180-day clock will be triggered for affected manufacturers, and affected processors must comply within 420 days of publication.

Finally, EPA published the notice of availability of Guidance to Assist Interested Persons in Developing and Submitting Draft Risk Evaluations, a guidance document intended to assist stakeholders with developing and submitting their draft risk evaluations, and has uploaded draft scoping documents for the first ten chemicals for which EPA is required to perform risk evaluations under the Lautenberg Act to its website (EPA’s initiation of the risk evaluation for these ten chemicals was previously discussed here).

As part of his regulatory reform agenda, President Donald Trump instructed federal agencies to review their regulations to identify requirements that burden businesses and industry.  See EO 13771 and EO 13777.  In order to comply with these directives, on June 8, 2017, the U.S. Department of Transportation (DOT) requested public comments to identify statutes, rules, regulations, and interpretations in policy statements or guidance “that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.”

Among the provisions of President Trump’s March 28, 2017,  Executive Order “Promoting Energy Independence and Economic Growth” (the “Executive Order”) is the repeal of President Obama’s November 3, 2015, Presidential Memorandum entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (the “Obama Memorandum”).  The Executive Order also directed all agencies to identify “Agency Actions” (existing regulations, orders, guidance documents, policies, and other similar agency actions) arising from the Obama Memorandum and, as appropriate, and “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules [to do so]…”