Environmental and Sustainability Law Archives

Jul 29, 2022

EPA to Publish CWA Spill Rules for Chemical ASTs

The U.S. EPA is set to publish a long overdue proposed rule that would require certain facilities with above-ground chemical tanks to develop response plans for worst-case scenario spills. The “worst-case response plan requirement” will be in addition to the CWA’s older mandate for developing spill prevention rules for oil and hazardous substances, and is being hailed by state and local and local emergency planning officials as a great step forward in protecting state water and drinking water supplies. The proposed Rules, which are set to be finalized as early as next month, will require operators with bulk chemical storage… Read more

Jul 18, 2022

EPA Scrutiny of Self-Audit Policy May Discourage Self-Disclosure of Violations

On June 30, the EPA Inspector General directed the Agency to develop a more rigorous process for screening self-disclosure of violations made to the EPA’s electronic disclosure system (eDisclosure). The Director found that the Agency lacked adequate internal controls to ensure that the EPA screening process is effective and that significant concerns, such as criminal conduct and potential imminent hazards are identified and addressed by the Office of Enforcement. Significant concerns are ineligible for the penalty mitigation shield available for minor noncompliance issues that are voluntarily disclosed to the EPA under the eDisclosure system. Companies are advised to review the… Read more

Jun 29, 2022

Industry Urges IRS to Delay Superfund Tax by Six Months

Chemical industry groups have urged the IRS to delay implementation of the Superfund taxes on chemicals which were reinstated by Congress in the bipartisan, infrastructure law. According to industry representatives, the IRS has not provided adequate guidance on a range of issues for taxpayers to meet their tax obligations. Specifically, chemical industry representatives have requested that the IRS provide guidance regarding the “taxable substances” that will be subject to the tax, including updating the current list of 151 substances, clarifying the tax rate for each substance, and a process for petitioning for substances to be added to the list. In… Read more

Jun 16, 2022

EPA Releases Drinking Water PFAS Standards

The EPA has released drinking water health advisory levels for four per-and polyfluoroalkyl substances (“PFAS”), including revised target levels for PFOA and PFOS. The updated advisory levels are based on new science that indicates that some negative health effects may occur with concentrations of PFOA or PFOS that are near zero. Accordingly, the new advisory levels are set at 0.004 parts per trillion for PFOA and 002 parts per trillion for PFOS, which are several orders of magnitude lower than levels set by the Obama EPA. While health advisory levels are not enforceable in their own right, many states use… Read more

Jun 7, 2022

EPA Proposes New CWA 401 Rule Undoing Trump-Era Limits

On Thursday, June 2, the EPA unveiled a proposed rule that would restore states’ ability to veto Federal infrastructure projects that they think could pollute water within their borders. If finalized, the EPA’s proposed Water Quality Certification and Improvement Rule would roll back the Trump Administration’s 2020 Clean Water Act Section 401 Certification Rule, which greatly reduced states’ ability to object to infrastructure projects. The Clean Water Act gives states the right to certify any federally-permitted infrastructure project that might discharge pollution into streams, waters or wetlands. Under the EPA’s proposed rule, a state would be allowed to determine whether… Read more

May 19, 2022

First Circuit Reverses Bar on CWA Citizen Suits

The U.S. Court of Appeals for the First Circuit has overturned its bar on Clean Water Act (“CWA”) citizen suits seeking declaratory relief when a state is “diligently” prosecuting a violation. In the opinion, the Court agreed with environmentalists and the EPA that its prior opinion was at odds with the text and congressional intent of the CWA. In the language of the Court, “the limitations set forth in Section 309(g)(6)(A) bars only a citizen suit that seeks to apply civil penalty for an ongoing violation of the CWA and not a citizen suit for declaratory and prospective injunctive relief… Read more

Apr 25, 2022

Timber and Paper Industry Petition EPA to Ease Restrictions on Burning Paper Residuals

In December, 2021, representatives of the timber and paper industry petitioned the EPA to ease restrictions on the burning of railroad ties and paper residuals as fuel without triggering strict hazardous waste combustion emission requirements. The EPA previously denied the coalition’s petition to revise the Nonhazardous Secondary Material criteria for treated railroad ties and certain paper residuals. As outlined in its March 29 request for reconsideration, the issue is whether the railroad ties and paper residuals can be burned as “fuel” in boilers and avoid tougher emissions limits designated for incinerators. When a material is designated as fuel under the… Read more

Apr 7, 2022

EPA to Cease Accepting Expedited Corrections to TSCA Inventory

On February 24, the EPA announced that it will stop accepting streamlined requests to correct entries on the TSCA Inventory of Chemicals in Commerce as of April 26, 2022. Historically, the Agency has allowed corrections to chemical identities using the same forms and documentation used to add an existing chemical to the inventory. This practice greatly streamlined and expedited the ability of industries to correct mistakes made in initial filings. Under the EPA’s new policy; however, the Agency will require any changes to go through the same pre-manufacture notice (“PMN”) process required for completely new chemicals. The decision has already… Read more

Mar 28, 2022

Department of Energy Announces Domestic Battery Strategy

On Friday, March 18, Energy Secretary, Jenner Granholm announced a program to develop lithium batteries in the United States as a part of a broader strategy to help Appalachia amid a transition away from coal. The lithium batteries are necessary components of electric vehicles and are used for storage on the U.S. electrical grid; however, the U.S. relies almost entirely on international markets for the processing of most raw materials. As a part of its plan, the Department has announced $5,000,000 in funding for pilot projects to be located in the 13-state Appalachia region. One such project, the development of… Read more