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The Biden administration has enormous climate and carbon management goals, which rightfully include the geologic sequestration of carbon dioxide as a core part of its climate adaptation strategy. The administration, to its credit, has worked with Congress to provide tax credits and billions of dollars of new funding for programs targeting the transportation and sequestration of carbon, but without equal commitment to the regulatory side of the house, the administration’s ambitious goals are at risk.
Continue Reading EPA UIC Class VI Program Administration Creates Potential Weak Link in Climate Adaptation Strategy

On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.
Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate

As previously reported, a coalition of environmental groups recently filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment.
Continue Reading Environmental Groups Voluntarily Dismiss Their Untimely Challenge to “Part B” CCR Rule Revisions

On February 11, three environmental groups — Sierra Club, Alliance for Affordable Energy, and PennEnvironment, Inc. — filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment. Part B is the second of two rulemakings comprising EPA’s “Holistic Approach to Closure” amendments to the coal combustion residuals (CCR) rule. Environmental groups filed a similar challenge to the “Part A” rule in the D.C. Circuit in November 2020. That case, Labadie Environmental Organization v. EPA, is currently pending.
Continue Reading Environmental Groups Challenge “Part B” Revisions to CCR Rule

On December 23, the U.S. Environmental Protection Agency (EPA) published its annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01182.
Continue Reading EPA Publishes Annual Inflation Adjustments to Civil Penalty Amounts

On October 14, the Environmental Protection Agency (EPA) issued new interim guidance to expedite approvals that would allow companies to make claims regarding the residual effectiveness of long-lasting surface disinfectants and other products against COVID-19. In response to the constant need to disinfect public spaces, companies have been developing innovative products that do not require continuous application. The process recently announced by the Agency is intended to fast-track products to market that are capable of keeping surfaces clean for several hours or even days.
Continue Reading EPA Seeks to Expedite COVID-19 Disinfectant Long-Lasting Efficacy Claims Approvals

On October 1, 2020, the Environmental Protection Agency (“EPA”) issued its final rule allowing for a source classified as a “major source” of hazardous air pollutants (“HAP”) under section 112(a) of the Clean Air Act to reclassify as an “area source.”  A “major source” emits or has the “potential to emit” 10 tons per year or more of a single HAP or 25 tons per year or more of a combination of HAP.  The EPA had long-followed the “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 Maximum Achievable Control Technology (“MACT”) standard was permanently subject to that standard, even if the source was later able to reduce its emissions below major source applicability thresholds.  With the final rule, branded as the “Major MACT to Area” (“MM2A”), EPA codified the withdrawal of the “once-in-always” policy and provided the requirements that apply to major sources choosing to reclassify, including reclassification that occurs after the first substantive compliance date of an applicable MACT standard.
Continue Reading EPA Finalizes Clean Air Act Rule Allowing Some Major Sources to Re-Classify as Area Sources

EPA’s New Source Review (NSR) reform efforts have been in full swing over the past month or so as the Agency released two final guidance documents, issued a pre-publication version of a proposed rule, took final action to end a years-old reconsideration of a 2007 rulemaking, and released its Fall Unified Agenda detailing dates for a number of upcoming NSR-related actions. While these actions may not have immediate consequences for many regulated sources, they are evidence that EPA continues to pursue its NSR reform agenda. 
Continue Reading EPA Engages in Flurry of NSR-Related Actions as 2019 Draws to a Close

Under the Obama Administration, the Environmental Protection Agency (EPA) issued a rule on January 13, 2017 amending parts of the Clean Air Act’s (CAA) Risk Management Plan (RMP) program, which regulates facilities that use hazardous substances.  Among other things, the Obama Administration’s 2017 RMP Rule implemented new requirements related to technology and alternatives analyses, third-party audits, disclosure requirements, and incident investigations.  Similarly to other areas of environmental law, the Trump Administration expressed its intention to repeal these requirements shortly after entering office.  After issuing a May 30, 2018 proposed rule and considering nearly 77,360 submitted comments, the EPA recently made good on its intention by releasing the pre-publication version of final RMP Reconsideration Rule that, among other things, repeals the Obama Administration regulations.

The final rule incorporates most of the substantive provisions in the proposed rule.  In addition to repealing much of the 2017 RMP Rule, the RMP Reconsideration Rule modifies the requirements related to local emergency coordination and compliance dates for some provisions.  The Reconsideration Rule will become immediately effective upon its publication in the Federal Register, which should occur soon.  Parties are also expected to challenge the RMP Reconsideration Rule in court, potentially resulting in the delay of the rule’s effective date or its reversal.  One potential challenger is a contingent of fourteen state attorney generals that submitted negative comments on the proposed rule.  More recently, the states submitted another comment listing chemical incidents that have occurred since the proposed rule, which they argue further evidences the need to keep the 2017 RMP Rule.
Continue Reading The Trump Administration Repeals Obama Workplace Chemical Requirements

On November 15, EPA posted its pre-publication version of the Final Rule re-classifying aerosol cans as “universal waste” under the Resource Conservation and Recovery Act (RCRA), which finalizes EPA’s March 16, 2018 proposal (83 Fed. Reg. 11,654).  As discussed in our prior blog post regarding the proposal, many aerosol cans have historically been classified as hazardous waste because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal.

Universal waste is a sub-category of RCRA regulated hazardous waste that allows certain widely generated products, such as batteries, certain pesticides, and lamps, to qualify for less stringent regulation than the traditional hazardous waste regime.  The Final Rule is intended by EPA to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans by providing an optional pathway for streamlined waste management treatment; promote the collection and recycling of these cans; and encourage the development of municipal and commercial programs to reduce the quantity of aerosol cans going to municipal solid waste landfills or combustors. 
Continue Reading EPA Finalizes Rule Classifying Aerosol Cans as Universal Waste