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

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

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

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

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

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

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

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