On February 18, 2020, a group of states and a national trade union filed separate petitions seeking administrative reconsideration of the United States Environmental Protection Agency’s (EPA or Agency) recently finalized Clean Air Act Risk Management Plan (RMP) reconsideration rule (the Reconsideration Rule). The Reconsideration Rule became effective on December 19, 2019, and rescinds numerous provisions of the Obama administration’s January 2017 amendments to EPA’s RMP regulations under the Clean Air Act (the Amendments).
Topics discussed this week include:
- EPA proposes to decline to set CERCLA financial assurance rule for electric power industry.
- D.C. Circuit upholds RCRA transfer-based exclusion.
- EPA proposes renewable volume obligations for 2020.
- EPA issues final enforcement policy on coordination with and delegation to states.
The definition of waters of the United States is central to the CWA. At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program. 33 U.S.C. § 1311(a). “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,” and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” See 33 U.S.C. §§ 1362(7), (12) and (14). (more…)
Earlier this summer, the Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) criminal office announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company’s truck fleet. DOJ and EPA charged five employees of Rockwater Northeast LLC, a company that services the hydraulic fracturing industry, for modifying emission control and OBD systems on approximately 30 of the company’s heavy-duty diesel trucks. (more…)
On July 19, 2017, the U.S. House of Representatives passed a pair of bills aimed at reforming natural gas and oil pipeline permitting, and granting additional authority to the Federal Energy Regulatory Commission (“FERC”). Both bills passed on largely party-line votes. The two bills are H.R. 2883, Promoting Cross-Border Energy Infrastructure Act, and H.R. 2910, Promoting Interagency Coordination for Review of Natural Gas Pipelines Act. H.R. 2883, removes the current requirement that gas and oil pipelines, as well as electric transmission projects, obtain a Presidential Permit to cross an international border. Instead, pipelines would obtain a certificate of crossing from FERC and transmission projects would obtain such a certificate from the Department of Energy. If enacted into law, this change would mark a significant change for oil pipeline projects. FERC currently has no authority over any aspect of interstate oil pipeline siting. Currently, all siting decisions not on federal lands are handled at the state level, with international border crossings overseen by the State Department through the presidential permit process. FERC does, however, oversee the siting of interstate natural gas pipelines, including Presidential Permits for international border crossings, under current law.
On June 22, the Environmental Protection Agency (EPA) took historic action under the Toxic Substances Control Act (TSCA), as amended last year by the Lautenberg Chemical Safety Act of 2016. First, EPA promulgated three final rules that will guide a new TSCA program to identify and evaluate chemicals in the United States by establishing (1) the procedures to “reset” the TSCA chemical inventory; (2) the procedures to prioritize the chemicals that will be evaluated; and (3) the methodology EPA will use for conducting chemical risk evaluations. Second, EPA released guidance for interested parties to submit their own risk evaluations. Last, EPA released their scope of work for the first chemicals that EPA will evaluate. (more…)
Yesterday, EPA and the U.S. Army Corps of Engineers began the formal process of repealing and replacing the Obama administration’s Clean Water Rule (“Rule”). Promulgated in 2015, the controversial Rule had broadly defined the term “waters of the United States,” which establishes the limits of jurisdiction under the federal Clean Water Act. In February of this year, President Trump signed an Executive Order that directed EPA and the Corps to review the 2015 Rule and issue a proposed rule rescinding or revising the Rule as appropriate and consistent with law. (more…)
President Donald Trump followed through on one of his signature campaign promises and announced Thursday that the United States will withdraw from the Paris Agreement on climate change.
The Paris Agreement is an international accord intended to reduce worldwide greenhouse gas (GHG) emissions and mitigate the effects of climate change. Nearly 200 countries signed the Agreement, which took effect in November 2016. The Agreement is not a binding treaty. Instead, the signatories agreed to set voluntary, individualized carbon emission targets. The U.S. target was to reduce GHG emissions by 26–28% below 2005 levels by 2025.