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Environmental and Energy Brief
Perspectives for the Environmental and Energy Community
EPA Lists PFAS as “Chemicals of Special Concern” for Toxic Release Inventory Reporting
On October 31, the Environmental Protection Agency (EPA) issued a rule finalizing Toxic Release Inventory (TRI) data reporting requirements for per- and polyfluoroalkyl substances (PFAS), designating PFAS as “chemicals of special concern.” TRI data is reported by various industrial sectors to disclose to the surrounding community how listed chemicals are managed. Under this “chemicals of special concern” designation, PFAS are no longer eligible for the use of a de minimus exception, and, as a result, PFAS manufacturers must identify PFAS and notify downstream manufacturers of inclusion even if PFAS is used in low concentrations in such products as food packaging, carpet stain repellent, shampoo, dental floss, and nonstick cookware. Prior to this designation, PFAS inventories less than 100 pounds did not require reporting. This final rule is effective November 30, 2023 and applies for the reporting year beginning January 1, 2024 (reports due July 1, 2025).
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Aaron L. Flyer
Washington, D.C.
aflyer@sidley.com
White House Announces Plan to Use Transportation Funding to Convert Commercial Properties Into Residential Use
On Friday, October 27, 2023, the White House announced an effort to utilize over $35 billion in federal assistance for affordable housing projects using funding appropriated under the Transportation Infrastructure Finance and Innovation Act and Railroad Rehabilitation & Improvement Financing programs. The White House, through the Department of Transportation, is now seeking to use these programs, which provide lending support for transit-oriented development projects at below-market interest rates, to convert properties no longer needed for transit into residential properties and develop residential properties near public transportation hubs. The White House suggests that these conversions and development projects will not only provide necessary affordable residential housing capacity but also reduce greenhouse gas emission by repurposing existing structures and siting residential housing projects near public transportation hubs.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Aaron L. Flyer
Washington, D.C.
aflyer@sidley.com
U.S. EPA Bans Hydrofluorocarbons in Refrigeration, Air Conditioning, and Heating Products
On October 5, 2023, the U.S. Environmental Protection Agency (EPA) issued a final rule restricting the use of hydrofluorocarbons (HFCs) in new aerosol, foam, and refrigeration, air conditioning, and heat pump (RACHP) products and equipment. The rulemaking is part of the phasedown of HFCs under the American Innovation and Manufacturing Act of 2020. The final rule also establishes a process to submit technology transition petitions to restrict the use of HFCs in industry sectors in which they are used.
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Hannah Posen
Chicago
hposen@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
U.S. EPA Enforcement Office Issues a Climate Enforcement and Compliance Strategy Memorandum
On September 28, 2023, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a memorandum outlining a Climate Enforcement and Compliance Strategy, identifying several steps the office plans to take to address climate change (the Strategy Memo). As part of the strategy, EPA plans to expand its efforts to address climate change by increased enforcement of rules governing greenhouse gas–forming pollutants and incorporating climate-related mitigation efforts, including renewable energy projects into settlements as mitigation or supplemental environmental projects. The Strategy Memo comes only a month after EPA issued its first-ever national enforcement and compliance initiative on climate change.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Justin A. Savage
Washington, D.C.
jsavage@sidley.com
Heather M. Palmer
Houston
hpalmer@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Beth J. Dickstein
Chicago
bdickstein@sidley.com
Federal Court Upholds U.S. Department of Labor ESG Rule
On September 21, 2023, Judge Matthew J. Kacsmaryk of the U.S. District Court of the Northern District of Texas rejected a challenge by 26 states and upheld the U.S. Department of Labor (DOL) rule that permits fiduciaries of plans subject to the Employee Retirement Income Security Act of 1974 (ERISA) to consider environmental, social, or governance (ESG) considerations under certain circumstances when making investment decisions. By upholding the rule, the court rejected the states’ contention that by allowing ESG considerations, financial interests would be subordinate to nonpecuniary interests. Stakeholders interested in ESG should continue to track this ruling, which may be appealed.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Rob Abrams
Washington D.C.
rabrams@sidley.com
Elizabeth Hardcastle
Washington, D.C.
ehardcastle@sidley.com
Robert P. Hardy
Christian E. Pilhofer
Chicago
cpilhofer@sidley.com
Beth J. Dickstein
Chicago
bdickstein@sidley.com
EPA Proposes Stricter Air Pollution Limits on Reclassified Area Sources
On September 21, 2023, the U.S. Environmental Protection Agency (EPA) published a notice of a proposed rule, “Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112.” The proposal adds requirements for regulated sources of hazardous air pollutants (HAPs) to reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAPs) program. Stakeholders who qualified under the revised policy adopted by the Trump administration should particularly take note of this further change by the Biden administration’s EPA. Comments are due by November 13, 2023.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Rob Abrams
Washington D.C.
rabrams@sidley.com
Jim Wedeking
Washington, D.C.
jwedeking@sidley.com
EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision
The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Maureen F. Gorsen
Century City
maureen.gorsen@sidley.com
Peter Whitfield
Washington, D.C.
pwhitfield@sidley.com
Caleb J. Bowers
Los Angeles
cbowers@sidley.com
California Air Resources Board Issues Clean Truck Check Implementation Guidance
On August 23, 2023, the California Air Resources Board (CARB) published additional guidance for the implementation of Clean Truck Check requirements under its Heavy Duty Inspection/Maintenance regulation. The requirements build on implementation guidance issued in June and set deadlines to achieve compliance with certain requirements beginning by December 31, 2023. Fleet owners and operators, and those contracting or brokering loads with heavy-duty trucks, should take note of CARB’s implementation timeline and prepare to comply with reporting and fee payment requirements beginning in the fourth quarter of 2023.
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Maureen F. Gorsen
Century City
maureen.gorsen@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Caleb J. Bowers
Los Angeles
cbowers@sidley.com
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