District Court: EPA’s Withdrawal of Clean Water Act Proposed Determination Is Within Agency’s Enforcement Discretion

On April 17, 2020, a federal district court dismissed a suit brought by environmental groups in the groups’ long-running challenge to the Pebble gold and copper mine in Alaska. On July 21, 2014, Region 10 of the U.S. Environmental Protection Agency (EPA) had published a Notice of Proposed Determination under the Clean Water Act (CWA) that concluded the discharge of dredge or fill material associated with mining project may have an “unacceptable adverse effect” on fisheries. In the Proposed Determination, invoking Section 404(c) of the CWA, EPA purported to preemptively prevent the U.S. Army Corps of Engineers (Corps) from issuing a permit to allow development of the mine. On July 31, 2019, EPA changed course and withdrew the 2014 Proposed Determination.


Members of House Committee on Oversight and Reform Request EPA Briefing on March 26, 2020 Memorandum

On April 22, 2020, members of the U.S. House Committee on Oversight and Reform (Committee) issued a letter to the Environmental Protection Agency (EPA or Agency) requesting a briefing by May 1 on the agency’s March 26 compliance memorandum. EPA’s memorandum, which was issued in light of the COVID-19 pandemic, outlines how the agency will exercise its enforcement discretion if a company is unable to comply with certain obligations in five areas: monitoring and reporting; settlement and consent decree obligations; facility operations; public water systems; and critical infrastructure. (more…)

EPA Issues Revised Supplemental Finding for Mercury and Air Toxics Standards and Final Risk and Technology Review

On April 16, 2020, the U.S. Environmental Protection Agency (EPA) released a prepublication final rule (along with a fact sheet and memorandum) revising its supplemental finding for the Mercury and Air Toxics Standards (MATS) and finalizing the results of a residual risk and technology review of the MATS. (more…)

New Jersey Approves Drinking Water Standards for Two PFAS

On March 31, 2020, the New Jersey Department of Environmental Protection sent its proposed rule setting maximum contaminant levels (MCLs) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) to the state’s Office of Administrative Law (OAL). Once the OAL completes its review, it will publish a final rule. Once the final rule is published in the New Jersey Register, it will set enforceable drinking water standards at levels of 0.014 micrograms per liter (µg/l) for PFOA and 0.013 µg/l for PFOS. (more…)

Energy Enforcement Update

With the market evolving rapidly, we are pleased to provide you with the following enforcement updates:

  • FERC extends deadlines for filing EQRs and Form No. 552 to June 1, 2020.
  • Trading company challenges PJM FTR forfeiture rule.
  • PJM submits tariff revisions to enhance rules for evaluating and managing credit risk.
  • FERC establishes paper hearing to evaluate proposed rejection in bankruptcy.
  • Parties file summary judgment motions and reply briefs in FERC v. Coaltrain Energy.
  • Kraft conditionally withdraws its motion for sanctions in CFTC v. Kraft Food Group, Inc.
  • Settlement discussions continue in FERC v. Richard Silkman et al.
  • Comments filed on the request for technical conference and petition for rulemaking to update credit and risk management in the ISO/RTO markets.
  • FERC issues Order 860-A on Connected Entity Information.
  • Fourth Circuit finds FERC’s action timely in FERC v. Powhatan Energy Fund, LLC.
  • CFTC approves proposed rule on position limits for derivatives.
  • FERC issues notice of intent to revoke MBR authority to thirteen entities for failure to file EQRs.
  • FERC approves a Stipulation and Consent Agreement between the Office of Enforcement and Emera Energy Incorporated.


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D.C. Circuit Dismissed Challenge to EPA Guidance as Nonfinal Action

On April 7, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) dismissed environmentalists’ challenge to the U.S. Environmental Protection Agency’s (EPA’s) guidance on significant impact levels (SILs) for ozone and particulate matter (i.e., PM2.5) because the guidance is not final agency action. The SILs guidance, published on April 17, 2018, explains the agency’s view that permitting authorities may exempt sources from in-depth Prevention of Significant Deterioration (PSD) permit review if anticipated impacts fall below nonbinding SIL values. In Sierra Club v. EPA, No. 18-1167, a three-judge panel of the D.C. Circuit unanimously held that the guidance does not legally bind as “it does not determine rights or obligations and does not effectuate direct or appreciable legal consequences as understood by the finality inquiry.” The D.C. Circuit did not reach the merits of the guidance.

EPA Leaves COVID-19 Decision-Making for On-Site Cleanup Work to Regional Offices

On April 10, the U.S. Environmental Protection Agency (EPA) released guidance to its regional offices regarding how on-site cleanup work may be adjusted during the COVID-19 pandemic. The guidance supplements an internal agency guidance, issued in March by the Office of Land and Emergency Management. EPA had issued guidance on enforcement discretion on March 26 that explicitly excluded the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) activities. The new guidance applies to cleanup and emergency response sites EPA directly oversees or is responsible for under the RCRA and the CERCLA.


EPA Finalizes SAFER Part 2

On March 31, 2020, the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) finalized Part 2 of their Safe Affordable Fuel Efficient Vehicles Rule (SAFER Part 2) for passenger cars and light trucks. Within the rule, EPA amends carbon dioxide standards for model years 2021 and later, and NHTSA amends fuel economy standards for model year 2021 and sets new fuel economy standards for model years 2022-26. Rather than freezing the standards as proposed, the rule will require a 1.5 percent annual improvement in vehicle emissions and efficiency. Environmental groups have already voiced objections to the agency’s cost-benefit analysis, among other issues. Once the final rule is published in the Federal Register, it is expected to be subject to litigation in federal court.

Groups Petition EPA for Emergency Rulemaking in Response to EPA’s COVID-19 Enforcement Discretion Policy

On April 1, 2020, environmental groups petitioned the U.S. Environmental Protection Agency (EPA) for an emergency rulemaking within seven days under the Administrative Procedure Act and the First Amendment to require companies to disclose when they stop monitoring or reporting under existing requirements, and the justification for doing so, if they make use of EPA’s March 26, 2020, enforcement discretion guidance addressing the COVID-19 pandemic. The petition also requests that the agency publish such information within one day of receiving notice from a company. In response to congressional inquiries, EPA has defended its action as a reasonable and temporary measure needed in an unprecedented time.

NHTSA Proposes Updates to Federal Motor Vehicle Safety Standards to Account for Autonomous Vehicles

On March 30, the National Highway Traffic Safety Administration (NHTSA) published a notice of proposed rulemaking seeking comment on updates to federal motor vehicle safety standards for vehicles equipped with Automated Driving Systems (ADS). As always, compliance with these standards is a prerequisite to selling vehicles into interstate commerce. The action seeks to update select standards to account for ADS vehicles that lack traditional manual controls necessary for human drivers but otherwise have traditional seating configurations (i.e., a passenger sitting in the driver’s seating position). Because NHTSA developed these standards long before vehicles equipped with ADS technology were ever contemplated, the current regulatory structure inhibits development of this new technology.