Environmental and Sustainability Law Archives

Sep 28, 2023

Third Circuit Reverses EPA “Reactivation” Policy for PSD

A three-judge panel for the U.S. Court of Appeals for the Third Circuit has held that the Clean Air Act (“CAA”) bars the EPA from requiring facilities that are restarting after being shuttered to undergo to strict, Prevention of Significant Deterioration (“PSD”) permitting. In the Opinion, Port Hamilton Refining & Transportation LLP v. EPA, the three-judge panel vacated the EPA’s 2022 decision requiring a refinery to obtain a PSD permit when the shuttered facility reopened. According to the panel, the CAA “unambiguously limits the PSD Program’s application to newly constructed or modified facilities. The refinery is not new and has… Read more

Sep 20, 2023

EPA Eliminates “Emergency” Defenses to CAA Violations

On July 21, the EPA finalized a rule barring “affirmative defense” emission waivers for “emergency” scenarios under Clean Air Act (“CAA”) Title V Permits. The proposed rule would remove an enforcement defense that allowed facilities to avoid liability for permit violations occurring during qualified emergency circumstances such as unavoidable emission control device malfunctions, or emergency start-up or shutdowns. Under the previous waiver provisions, industry permit holders were shielded from civil liability during a malfunction or other emergency that resulted in excess releases of air pollution. The proposed rule will require states to amend their State Implementation Plans (“SIPs”) to eliminate… Read more

Aug 23, 2023

OSHA Issues Heat Hazard Alert and Steps Up Enforcement

OSHA has issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces. The Department also announced that it will intensify its enforcement where workers are exposed to heat hazards with increased inspections in high risk industries like construction and agriculture. OSHA has not yet finalized a heat specific workplace standard, but is issuing the alert to remind employers that they have a duty to protect workers by reducing and eliminating hazards that expose workers to heat illness or injury under the General Duty Clause. Even without… Read more

Aug 3, 2023

EPA Criticized for Slow Response to WOTUS Ruling

The EPA is facing heavy criticism from Republican lawmakers, states, and industry groups for its “slow response” to the Supreme Court’s Ruling in Sackett v. EPA. After the ruling, which set out parameters for defining “waters of the United States,” the Army Corps of Engineers has ceased issuing jurisdictional determinations, which effectively halts the issuance of new 404 Permits. Industry groups have urged the EPA to issue an emergency rule in keeping with the Sackett decision on an expedited basis in order to allow the Corps to resume issuance of jurisdictional determinations. The Biden administration, however, appears to be keeping… Read more

Jul 17, 2023

EPA and Army Corps to Issue New WOTUS Rule

The EPA and the Army Corps of Engineers are planning to issue a rule narrowing the definition of “Waters of the United States” (WOTUS) to conform to the Supreme Court’s Sackett Ruling. Both agencies have suspended issuance of approved jurisdictional determinations (AJD) pending revised rules to reflect the Supreme Court’s decision. The Supreme Court’s May 25 decision significantly narrowed the scope of wetlands covered by the Clean Water Act to only those that are “indistinguishable” from adjacent, jurisdictional water bodies based on a “relatively permanent” surface-water connection. In addition to suspending the issuance of AJDs, the EPA has sought to… Read more

Jun 20, 2023

EPA Proposes Reforms to New Chemicals Review Under TSCA

On May 16, 2023, the EPA proposed amendments to regulations that govern review of new chemicals under TSCA. Under TSCA, the EPA is charged with reviewing the potential risk of new chemicals before they enter U.S. commerce, and authorizes the EPA to put safeguards in place to protect human health and the environment. The proposed amendments would eliminate existing exemptions for PAFS and related compounds from the Pre-Manufacturing Notice (“PMN”) safety review for the manufacture of chemicals with low production quantities, environmental releases, or human exposures. The proposal would make new PFAS compounds categorically ineligible for these exemptions, and are… Read more

May 22, 2023

OMB Clears Hurdle for Regulation of Coal Ash Landfills

On May 4, 2023, the Office of Management and Budget (OMB) approved the EPA’s proposed new rule to regulate landfills containing coal combustion residuals (CCR). The new rule would close a regulatory gap left open by the EPA’s 2015 CCR rule which established groundwater monitoring requirements for CCR landfills that accepted ash after October 19, 2015. The 2015 Rule exempted surface impoundments at active facilities, and surface impoundments at all inactive CCR landfills. While it is not yet clear whether the agency will include provisions addressing inactive CCR landfills in its Legacy Surface Impoundment Proposal, which is set to be… Read more

May 9, 2023

Future of “Durable” WOTUS Rule in Doubt

In a March 19 ruling in State of Texas, et al. v. EPA et al., a U.S. District Court for the Southern District of Texas granted Texas and Idaho’s Motions to block the Biden Administration’s “durable” definition of “Waters of the United States” (WOTUS). The purpose of the rule was to establish a durable definition of WOTUS grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience in protecting the Nation’s waters. In questioning the viability of the rule, Judge Brown noted that the final rule’s broad application of the… Read more

Apr 26, 2023

Lawsuit Challenges USFS CWA Permits for Aerial Firefighting

The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species. FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until… Read more

Apr 11, 2023

Bill Introduced in the House to Finance Utilities’ LSL Replacement Efforts

In early March, Democrats Dan Kildee (D-MI) and Senator Michael Bennett (D-CO) reintroduced their “Financing Lead Out of Water (FLOW) Act,” which would amend the Federal Tax Code to allow public water systems to pay for replacement of privately owned Lead Service Lines (LSL) with tax-exempt bonds. Currently, in order to qualify for tax exempt bonds, water system replacement efforts by large municipalities must pass the IRS’ “private business use test” to access tax-exempt bonds. Under the test, municipalities must certify that the funds will not be used to benefit private business above a certain threshold. The FLOW Act would… Read more