EPA Outlines New Guidance Procedures, to Include Public Comment and Mechanism to Request Modification of Existing Guidance
The Environmental Protection Agency (EPA or Agency) has proposed new regulations to establish a transparent process for issuing future interpretive guidance documents. “Guidance” generally refers to memoranda, letters, bulletins or “frequently asked questions” Web pages that clarify EPA interpretations of regulations or Agency-administered programs and assist regulated entities with regulatory compliance. Historically, EPA has not issued guidance through an Administrative Procedure Act notice-and-comment process. Accordingly, courts have generally found that interpretive guidance is not legally binding in the same way as a promulgated and codified regulation. However, EPA does expect that regulated entities be familiar with interpretive guidance, and the public has not had a clear mechanism to challenge these documents.
Safety, Health and Waste Issues with Reopening Businesses
On April 28, 2020, the U.S. Environmental Protection Agency (EPA) and Centers for Disease Control and Prevention (CDC) released joint guidance on reopening during/after the COVID-19 pandemic. The document covers cleaning practices and disinfection practices, citing the list of EPA-approved disinfectants for use against COVID-19. Of course, as businesses reopen, there are concerns about Occupational Safety and Health Standards as well as waste requirements for spent personal protective equipment (PPE).
Ongoing Enforcement on Disinfectants for COVID-19
As previously featured, U.S. agencies have stepped up scrutiny and enforcement of pesticide law against substances purporting to kill the novel coronavirus that causes COVID-19. Recently the Federal Trade Commission (FTC) has also stepped up enforcement, sending letters to 45 companies regarding potentially misleading product claims about COVID-19, including various air and water filters that could violate pesticide law. Manufacturers, importers and retailers that deal in pesticide and pesticide devices should pay special attention to any antiviral claims on products in the current regulatory climate. (more…)
House Committee on Science, Space and Technology Responds to EPA’s Proposed Rulemaking on Transparency in Science
On Wednesday, May 6, Rep. Eddie Bernice Johnson, D-Texas, chairwoman of the House Committee on Science, Space and Technology, distributed a memo to the committee criticizing the U.S. Environmental Protection Agency (EPA) proposed rule to limit the use of scientific studies in agency decisions, highlighting topics Rep. Johnson argued EPA had not considered and questioned the legal authority for EPA’s approach. The memo follows EPA’s supplemental notice of proposed rulemaking published on March 18, following the original “Transparency in Science” proposal published in April 2018. Read more about the EPA March 18 supplemental “Transparency in Science” proposed rule here.
Eighth Circuit Affirms Discharge in Bankruptcy of Common Law Climate Change Claims
On May 6, in In re: Peabody Energy Corp., a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit held that certain climate-change-related claims had been discharged in Peabody Energy’s Chapter 11 bankruptcy plan. Three municipalities had brought state common law claims for negligence, trespass, nuisance and strict liability against energy companies, including Peabody, asserting that the companies contributed to global warming that has caused damage to the municipalities. (more…)
Interpretation of ARCO v. Christian Already Before Appellate Courts
Less than two weeks after the U.S. Supreme Court handed down its decision in Atlantic Richfield Co. v. Christian, the scope of the ruling is before the First and Ninth circuits. On April 28, 2020, Rhode Island and several California counties argued that Atlantic Richfield supported efforts to remand to state court lawsuits filed against energy producers seeking relief based on alleged contributions to climate change. Although these lawsuits do not address the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) — the statute at issue in Atlantic Richfield — the states’ supplemental filings assert that the Court’s jurisdictional holding means that these claims should proceed in state court. (more…)
Seventeen States Challenge U.S. EPA’s Navigable Waters Protection Rule
On May 1, 2020, 17 states sued the U.S. Environmental Protection Agency (EPA) over the agency’s January 23, 2020, navigable waters protection rule (NWP rule). Filed in the U.S. District Court for the Northern District of California, the lawsuit seeks to vacate the NWP rule as contrary to the Clean Water Act (CWA) and arbitrary and capricious. The states’ lawsuit follows other challenges to the NWP rule filed by livestock producers on the right and by environmental groups on the left.
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…)