EPA Publishes “Transparency in Science” Final Rule

On January 6, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) published a final rule, “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.” EPA published the proposed rule in April 2018 and followed it with a supplemental notice in March 2020. The final rule establishes how EPA will consider the availability of dose-response data, and it is narrower in scope than both the proposed rule and the supplemental notice, as it is restricted to “those studies that describe the quantitative relationship between the dose or exposure of a pollutant, contaminant, or substance and an effect.”

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U.S. Army Corps of Engineers Finalizes 16 Nationwide Permits

On January 5, 2021, the U.S. Army Corps of Engineers (Corps) released a prepublication version of its final rule reissuing and modifying 12 existing Nationwide Permits (NWPs) and issuing four new NWPs. NWPs authorize activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 when those activities will result in “minimal individual and cumulative adverse environmental effects.” In addition to finalizing 16 NWPs, the rule also changed general conditions and definitions associated with those NWPs. Through this action, the Corps did not reissue or modify the remaining 40 existing NWPs, which will remain in effect until March 18, 2022.

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EPA Draft PFAS Guidance Would Subject Range of Articles to Significant New Use Rule

On December 10, 2020, the U.S. Environmental Protection Agency (EPA) released a draft guidance for imported articles that may contain long-chain perfluoroalkyl carboxylate chemical substances (LCPFAC), a subgroup of certain per- and polyfluoroalkyl substances (PFAS), as part of a surface coating and that would be subject to its Significant New Use Rule (SNUR) if a manufacturer seeks to resume using them.

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EPA Issues Clean Air Act Cost-Benefit Rule

On December 9, the U.S. Environmental Protection Agency (EPA) finalized its Clean Air Act (CAA) cost-benefit rule. The procedural rule sets requirements for evaluating the benefits and costs of regulatory decisions, which EPA believes is necessary to ensure transparency and consistency in the rulemaking process. The main requirements are as follows: 1) EPA must prepare a benefit-cost analysis (BCA) for all significant proposed and final regulations under the CAA; 2) BCAs are developed in accordance with best practices from the economic, engineering, physical, and biological sciences; and 3) EPA must increase transparency in the presentation of the benefits and costs resulting from significant CAA regulations.

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U.S. Department of Energy Implements Updated Regulations on National Environmental Policy Act Compliance for Natural Gas Act Authorizations

On December 4, the U.S. Department of Energy (DOE) issued a final rule updating the National Environmental Policy Act (NEPA) implementing regulations applicable to its review of applications to export domestically produced liquified natural gas (LNG) to non-free-trade-agreement countries under Section 3 of the Natural Gas Act. DOE has determined that these actions are categorically excluded from NEPA review because 1) DOE is required by Section 3(c) of the Natural Gas Act to authorize these exports and 2) the reasonably foreseeable environmental effects DOE must review are limited — beginning at the point of export and extending to marine transport effects only. DOE is also removing reference to the import of LNG from its NEPA implementing regulations because the Energy Policy Act of 1992 leaves DOE with no discretion in its approval of such imports.

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Environmental Protection Agency Issues Interim Strategy Memorandum to Address PFAS in Federally Issued Water Permits

The U.S. Environmental Protection Agency (EPA) Office of Water has published a new interim strategy memorandum for addressing per- and polyfluoroalkyl substances (PFAS) in National Pollutant Discharge Elimination System (NPDES) permits issued by EPA. The memorandum includes recommendations generated by a cross-agency workgroup, which conducted a review of existing Clean Water Act (CWA) section 402 NPDES permitting authorities to determine where and how currently unregulated contaminants like PFAS may fit into the permitting process. Under the CWA, the NPDES permit program regulates point sources that discharge pollutants into waters of the United States. Currently, there are no CWA water quality criteria or effluent guidelines for PFAS, an umbrella category of thousands of synthetic chemicals historically used in industrial manufacturing processes for their flame-resistant and nonstick properties.

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