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

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

Mar 27, 2023

EPA Publishes Draft “Cumulative Risk” Assessment Procedures Under TSCA

The EPA has release a proposed guidance document for conducting cumulative risk assessments (“CRA”) under the Toxic Substances Control Act (“TSCA”). The guidance is designed to assist the EPA to characterize and quantify the combined risk to health and/or the environment from multiple chemical agents and/or stressors. Under the Biden Administration, consideration of cumulative risk is a top priority for the EPA in its efforts to address environmental justice concerns. The draft guidance notes that disadvantage communities often face multiple pollutants from multiple media which overlap with the adverse effects of poverty and other socioeconomic factors. However, it takes a… Read more

Mar 13, 2023

EPA Proposes Strict Clean Water Act Treatment Technology for Coal-Fired Power Plants

On March 8th, the EPA proposed an Effluent Limitation Guidance (ELG) rule designed to meet a “zero discharge” goal for the steam electric power generating point source category. The proposal includes requirements for advanced membrane treatment technology which the EPA believes is necessary to meet the CWA’s definition of “best available technology” required by the ELG. ELGs are technology based treatment mandates that the EPA adopts to represent the greatest pollution reductions an industry can achieve through economically feasible methods. The EPA’s proposed rule will also set tighter discharge standards for flue-gas desulphurization wastewater, bottom ash transport water, and combustion… Read more

Feb 27, 2023

U.S. Attorneys’ Office Issues New “Self-Disclosure” Penalty Policy for Environmental Crimes

On February 22, the U.S. Attorneys’ Office issued a new, voluntary self-disclosure policy encouraging companies to reveal potentially criminal conduct for environmental crimes. For qualifying self‑disclosures, the policy can result in significant penalty reductions, and is intended to incentivize corporate compliance programs capable of identifying misconduct, and encouraging companies to rapidly address the underlying noncompliance. Under the policy, a company is considered to have made a voluntary disclosure if it becomes aware of misconduct and publicly reports the misconduct to the DOJ in a timely fashion prior to an eminent threat of disclosure. Companies that make qualified, voluntary disclosures may… Read more

Jan 30, 2023

EPA Published WOTUS Rule on January 18, 2023

The U.S. EPA released a controversial new rule defining regulated “waters of the United States” on January 18, 2023. The Publication began the 60-day clock for critics to challenge the rule in Federal Court. The new Rule is expected to closely track the pre-publication version that was released by the PEA on December 30. Under the proposed rule, the EPA and the Corps will be directed to apply WOTUS Standards developed prior to 2015 and the controversial WOTUS definition issued by the Obama Administration. The new Rule attempts to reconcile the narrow “continuous surface connection” between “relatively permanent” waters, and… Read more

Jan 17, 2023

White House Publishes Guide to Weighing Climate Consequences to Permitting Actions

On Friday, January 6, the White House issued its long awaited guidance telling federal agencies how to consider climate impacts on permitting decisions. The guidance details the need to make sure the depth of analysis undertaken by the agency is proportional to a project’s impact. The document also gives agencies authority to perform a less detailed analysis for projects that are deemed to reduce emissions, such as clean energy projects, as well as encouraging agencies to engage with affected communities, and to factor in environmental justice considerations in their analysis. The new guidance is designed to work in concert with… Read more

Jan 3, 2023

Asphalt Manufacturer Challenges EPA’s Spill Rule Under Oil Spill Control Regulations

The U.S. Court of Appeals for the District of Columbia is set to rule on a challenge by an asphalt emulsions manufacturing company alleging that the EPA unlawfully required its facility to maintain a Facility Response Plan (“FRP”) simply because of its proximity to navigable waters. The Regulation in question requires a facility to prepare an FRP if, “because of its location, it could reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjacent shorelines.” The “substantial harm” test is fulfilled when a facility’s total oil storage capacity exceeds… Read more