Jun 262018

Sidley Environmental Trends

Environmental Trends Contributors
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Topics discussed this week include:

  • D.C. Circuit upholds the EPA’s “regional consistency” regulations
  • Federal district court in Georgia enjoins implementation of WOTUS rule in 11 states
  • The EPA approves Oklahoma CCR disposal plan
  • CEQ issues ANPRM requesting comment on how to update NEPA’s implementing regulations
  • ATSDR issues draft toxicological profile asserting that PFAS compounds may endanger human health at low levels

D.C. Circuit upholds the EPA’s “regional consistency” regulations. In a recent opinion, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. Environmental Protection Agency’s (EPA’s) 2016 amended Clean Air Act (CAA) regional consistency regulations. These regulations, located at 40 C.F.R. §§ 56.1-56.7, state in relevant part that the EPA will only apply decisions of the U.S. Supreme Court or D.C. Circuit on CAA matters uniformly across its ten regions. The D.C. Circuit’s opinion held that the revised regional consistency regulations were a “permissible and sensible” way to both satisfy the CAA’s statutory mandate for national uniformity in implementation and enforcement while recognizing that circuit courts of appeals may interpret the CAA differently. The 2016 regulations are the result of a lengthy history. In a 2012 opinion, the Sixth Circuit overturned an EPA interpretation of the definition of “major source” under the CAA’s Title V permitting program. The EPA subsequently issued a memorandum stating that it did not intend to apply the Sixth Circuit’s decision outside of that circuit’s boundaries, which was challenged and struck down by the D.C. Circuit.

Federal district court in Georgia enjoins implementation of WOTUS rule in 11 states. The U.S. District Court for the Southern District of Georgia recently enjoined the EPA’s rule defining the term “waters of the United States” (“WOTUS”) under the Clean Water Act, which establishes the Act’s jurisdictional reach. The court determined that the plaintiffs were likely to succeed on the merits of their case and faced a substantial threat of irreparable injury without the preliminary injunction. By granting the plaintiff states’ request for a preliminary injunction of the WOTUS rule, the court prevented it from going into effect in those 11 states (Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah and Wisconsin). The WOTUS rule has been mired in litigation and revision since its issuance in 2015. Challenged in both the district and circuit courts, the Sixth Circuit stayed the rule nationwide before the Supreme Court held earlier this year that challenges to the rule must proceed in the district courts. In the meantime, under President Trump, the EPA delayed the rule’s applicability until 2020, which is separately being challenged in the district courts, and has begun the process of repealing and replacing it.

The EPA approves Oklahoma CCR disposal plan. The EPA recently approved Oklahoma’s proposed permitting program for the disposal of coal combustion residuals (CCR) in landfills and surface impoundments, making the state the first to have a federally approved CCR disposal program under Subtitle D of the Resource Conservation and Recovery Act (RCRA). In 2015, the EPA promulgated a rule (CCR rule) governing the disposal of CCR as a solid waste under RCRA Subtitle D. At the time, there was no mechanism for state permitting of CCR disposal. In 2016, when it enacted the Water Infrastructure Improvements for the Nation Act, Congress modified Section 4005 of RCRA to authorize state CCR disposal programs. The EPA has also proposed to modify various elements of the CCR rule. Environmental non-governmental organizations (NGOs) have already threatened to challenge the approval of Oklahoma’s program.

CEQ issues ANPRM requesting comment on how to update NEPA’s implementing regulations. The White House Council on Environmental Quality (CEQ) published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register, asking for comment on how best to update its implementing regulations for the National Environmental Policy Act (NEPA). Noting that it has only substantively updated its NEPA regulations once over the past 40 years, CEQ requested comment on a number of questions, including how the regulations could be revised to ensure that environmental reviews involving multiple agencies be concurrent, synchronized, timely and efficient, and whether the definitions of any key NEPA regulatory terms should be revised. The comment period closes on July 20. NEPA governs the process by which federal agencies evaluate the possible environmental impacts of their proposed actions via environmental assessments and environmental impact statements. The Trump Administration has identified the NEPA process as a key contributor to slowing down infrastructure projects and has previously floated changes to it in an August 2017 executive order, a February 2018 infrastructure plan and an April 2018 memorandum of understanding between multiple federal agencies.

ATSDR issues draft toxicological profile asserting that PFAS compounds may endanger human health at low levels. The Agency for Toxic Substances and Disease Registry (ATSDR) recently released a draft toxicological profile for perfluoroalkyl (PFAS) compounds which asserted that they may be harmful to human health at low levels. The draft toxicological profile includes Minimum Risk Levels (MRLs) for various PFAS compounds, which are estimates of the daily human exposure to a substance likely to be without appreciable risk of adverse non-cancer health effects over specified exposure routes and durations. Although different in kind than the EPA’s 2016 70 parts per trillion drinking water health advisory for two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), the MRLs would likely translate to lower health advisory numbers than the EPA’s. Due to their nonstick properties, PFAS compounds have been used as nonstick coatings in cookware, surface coatings in paper and cardboard, in firefighting foam and in other products. PFAS compounds have been associated with a number of possible adverse health effects. ATSDR is taking comment on the draft toxicological profile for PFAS through July 23. The EPA has separately begun to focus on PFAS compounds, holding a summit in May at which various regulatory approaches were discussed.

Environmental Trends Contributors

sidleyenergy@sidley.com

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