EPA Publishes Principles to Address Environmental Justice in Air Permitting

On December 22, 2022, the U.S. Environmental Protection Agency’s (EPA or the Agency) Office of Air and Radiation (OAR) published a memorandum, which outlines “an interim operating framework” to OAR division directors in all EPA regions “for identifying, analyzing, and addressing environmental justice concerns in Clean Air Act (CAA) permitting” (Guidance).

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EPA Amends All Appropriate Inquiries Rule

On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.

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2022 Sidley Energy Enforcement Update

This Sidley Energy Enforcement update covers:

  • Federal Energy Regulatory Commission (FERC) approves settlement between Enforcement staff and Coaltrain
  • Both FERC and Commodity Futures Trading Commission (CFTC) enforcement reports highlight the respective agency’s continued commitment to strong enforcement
  • U.S. Court of Appeals for the Fifth Circuit upholds FERC’s finding that BP manipulated the natural gas market but remands to FERC to recalculate its $20 million penalty
  • CFTC orders Glencore to pay a record-setting penalty of $1.186 billion
  • CFTC and Securities and Exchange Commission (SEC) orders over $1.8 billion in fines against 11 firms for recordkeeping failure — employees using unapproved method of communications such as texts and WhatsApp on personal devices

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U.S. EPA Adds 12 Chemicals to Toxics Release Inventory

On November 30, 2022, the U.S. Environmental Protection Agency (EPA) finalized a rule that adds 12 chemicals to the list of chemicals subject to Toxics Release Inventory (TRI) reporting requirements.[1] Facilities that are covered by TRI and meet reporting requirements for these chemicals will now be required to report to EPA on quantities of these chemicals that are released into the environment or otherwise managed as waste. The first reports on these chemicals will be due to EPA July 1, 2024, for calendar year 2023 data.

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U.S. Endangered Listing for Northern Long-Eared Bat

On November 30, 2022, the U.S. Fish and Wildlife Service (Service) published a Final Rule reclassifying the northern long-eared bat as an endangered species pursuant to the Endangered Species Act (ESA) and updating the bat’s range to 43 states. The Service did respond favorably to commenters’ request for guidance on activities that would or would not affect the bat and for additional resources to assist regulated entities and regulators with consultation and permitting activities. These include the following:

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California Air Resources Board Set to Finalize Ambitious Climate Plan

On November 16, 2022, the California Air Resources Board (CARB) released an updated version of its 2022 Scoping Plan for Achieving Carbon Neutrality. The plan sets ambitious goals for achieving carbon neutrality in California by 2045. Despite the plan’s being only a guiding document, it will likely lead to other agency actions that set stringent requirements related to reducing greenhouse gas emissions.

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Upcoming Decision From U.S. Supreme Court Could Further Restrain Authority of Administrative Law Judges

Two cases recently argued before the U.S. Supreme Court address the question of whether federal agencies have authority to mandate proceedings before administrative law judges (ALJs). The plaintiffs in these cases have challenged the constitutionality of ALJ proceedings and, depending on how broadly the resulting opinion is written, the Court’s decision could limit the authority of ALJs across the federal government including within the Environmental Protection Agency (EPA).

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U.S. EPA Proposes to More Than Double Toxic Substances and Control Act Fees

On November 16, 2022, the U.S. Environmental Protection Agency (EPA) proposed to raise its current Toxic Substances and Control Act (TSCA) fees, some of which would be more than doubled. This supplemental notice of proposed rulemaking modifies EPA’s proposal from January 11, 2021, which then aimed to increase the TSCA fees largely for inflation adjustment. TSCA allows EPA to collect fees from manufacturers, including importers, for the agency’s activities under TSCA Sections 4, 5, 6, and 14. Under the TSCA, EPA is required to adjust the fees “as necessary” every three years. In 2018, EPA promulgated a fee rule in 40 CFR part 700, subpart C, and set the current fees pursuant to that rule.

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Terence T. Healey

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Kenneth W. Irvin

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Casey Khan

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Michael L. Lisak

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Aaron L. Flyer

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Allison H. In

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Nicole E. Noëlliste

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Jagdeep Singh

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Jimmie Zhang

Washington, D.C.

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