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…)
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.
EPA Narrows Scope of “Begin Actual Construction” Restriction Under New Source Review Preconstruction Permitting Program
On March 25, EPA issued a draft memorandum outlining its revised regulatory interpretation of when site owners and operators can “begin actual construction” of new major stationary sources or major modifications to existing major sources under the New Source Review (NSR) preconstruction permitting program. Under the NSR program and Prevention of Significant Deterioration of Air Quality rules at 40 C.F.R § 52.21, a site owner cannot “begin actual construction” on these sources without an NSR permit in hand. “Begin actual construction” is defined as “in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. … [including] installation of building supports and foundations, laying underground pipework and construction of permanent storage structures.”
U.S. EPA Publishes Supplemental “Transparency in Science” Proposed Rule
On March 18, the U.S. Environmental Protection Agency (EPA or the Agency) published a supplemental notice of proposed rulemaking in its “Strengthening Transparency in Regulatory Science” rulemaking. EPA’s original “Transparency in Science” proposal, published in April 2018, proposed that “for the science pivotal to its significant regulatory actions, EPA will ensure that the data and models underlying the science is publicly available in a manner sufficient for validation and analysis.” (more…)
New U.S. Department of Justice Guidance Ends Use of Supplemental Environmental Projects (SEPs) in Settlements
On March 12, the U.S. Department of Justice (DOJ) Environment and Natural Resources Division (ENRD) issued guidance ending its decades-long practice of permitting private defendants in civil settlements to expend funds to provide environmentally beneficial goods and services to third parties in lieu of civil penalty payments. Defendants have long preferred to undertake supplemental environmental projects (SEPs) in lieu of paying larger penalties, and government enforcement lawyers saw SEPs as a valuable tool to encourage settlements. DOJ now finds that these SEPs violate the federal Miscellaneous Receipts Act, which requires federal officers receiving funds on behalf of the United States to deposit those funds into the United States Treasury. “Moving forward, [SEPs] will no longer be part of the suite of relief the Environment and Natural Resources Division seeks in its cases (unless specifically authorized by Congress), both in light of their inconsistency with law and their departure from sound enforcement practices,” according to ENRD’s memorandum. ENRD’s new policy is prospective and will not affect SEPs in existing settlements.
The EPA Issues Final Rule on Inspections in Civil Cases
On March 2, 2020, the U.S. Environmental Protection Agency (EPA) issued a final rule providing the procedures for EPA inspections in civil cases. (more…)