Environmental and Sustainability Law Archives

May 1, 2019

Sluggish Response to Opportunity Zone Program

Response from renewable developers has been slow to the Tax Cuts and Job Act of 2017’s Opportunity Zone program, with only 11 Qualified Opportunity Funds (QOFs) focused on renewable energy since the program began. The program provides capital gains tax benefits for renewable investments in up to 8,700 federally designated areas. The program allows investors to defer taxes and gains put into QOFs, the vehicles used to invest in the zones, until December 2026. Investors who hold their investments for five to seven years can increase their basis on the investment by 10 to 15 percent, cutting taxes by an equal amount…. Read more

Apr 24, 2019

EPA Administrator Promises to Listen to Scientists

In an eight-page letter to the EPA’s Science Advisory Board (Board), EPA Administrator Andrew Wheeler provided assurances to the Board that the EPA would continue to share information with the expert advisors in a timely fashion and be more transparent on key regulatory science issues by holding more rapid and frequent briefings. The Board is a panel of nearly four dozen outside researchers and experts who review the technical information used by the EPA to set policy and draft regulations. The assurance letter from Wheeler was in response to complaints from the Board that the agency was ignoring its own… Read more

Apr 17, 2019

Developments to Watch: State Chemical Regulation and Proposed Legislation

Toxic Chemicals & State Chemical Regulation

At least 22 States have had at least 97 pieces of legislation introduced in their legislatures for chemical regulation or bans, over and above regulatory actions taken by EPA under the amended Toxic Substances Control Act (TSCA). In addition to complying with chemical registration requirements on the federal level under TSCA, manufacturers, importers, and users of chemicals must also be familiar with and remain in compliance with numerous State chemical regulatory requirements. California’s labeling requirements under its Proposition 65 are only one example. For that reason, it is prudent to monitor legislative developments in State legislatures around the country that… Read more

Apr 3, 2019

EPA Risk Management Plan Rule Update

After losing a case in the D.C. Circuit Court of Appeals on its attempt to delay the effective date of the Obama-era final rule strengthening EPA’s Risk Management Plan (RMP) facility accident prevention program, EPA issued a proposed rule last Fall largely scrapping the Obama-era rule’s requirements. However, EPA has not yet issued a final rule, yet it was compelled to comply with the mandate of the D.C. Circuit Court of Appeals that invalidated its attempted delay of the Obama-era rule’s effective date. As a result, in December, EPA published a final rule in the Federal Register that the January… Read more

Mar 27, 2019

EPA Citation to Chemours Shows Enforcement Push Under TSCA

Last month, EPA issued notices of violation (NOVs) to Chemours, which manufactures per- and polyfluoroalkyl substances (PFAS), among other chemicals, for alleged violations of the Toxic Substances Control Act (TSCA) at two of its facilities located in Fayetteville, NC and Parkersburg, WV. The two NOVs, relatively rare under TSCA, may indicate an intent by EPA to step up enforcement under TSCA. The NOVs allege that Chemours failed to comply with a TSCA significant new use rule (SNUR) requiring GenX compounds (a form of PFAS) to be manufactured in an enclosed process; and failed to properly control effluent and emissions during… Read more

Mar 20, 2019

Groundwater Pollution Liability Under Clean Water Act to be Reviewed by U.S. Supreme Court

On February 19, the U.S. Supreme Court granted certiorari to review a unanimous decision by a panel of the Ninth Circuit Court of Appeals that underground wastewater injection into a groundwater channel that flows to the Pacific Ocean requires a permit under the Clean Water Act. The Ninth Circuit decision, Hawai’i Wildlife Fund, et al v. County of Maui, 886 F.3d 737 (9th Cir. 2018), is one of two Circuit Court cases finding liability under the Clean Water Act for unpermitted discharges of pollutants to groundwater for which certiorari petitions are pending in the Supreme Court. The Order issued on… Read more

Mar 13, 2019

California Moves to Block U.S. EPA Air Pollution Standards for Auto Emissions

California Pollution Standards: Low Emission Zone

Representatives for the California Air Resources Board have stated that they will take all legal measures necessary to block the Trump administration’s efforts to freeze fuel economy limits at nationwide 2020 levels. Under the Clean Air Act (“Act”), California has special authority to enact stricter pollution standards for motor vehicles than the nationwide standards set by the federal government. Under the same provisions of the Act, other states may adopt the more stringent California standards if they find them to be more protective of public health. Under the Trump administration, the EPA sought to impose more lenient emission requirements in… Read more

Mar 6, 2019

USPS’s Defenses to OSHA Citation Rejected

In Secretary of Labor v. U.S. Postal Service, OSHRC Docket No. 18-0462, an administrative law judge of the Occupational Safety and Health Review Commission granted summary judgment in favor of the Secretary of Labor, rejecting two affirmative defenses put forth by the U.S. Postal Service to an other-than-serious citation issued by OSHA on February 26, 2018. The citation alleged the USPS issued a suspension to a worker because he reported a work-related injury, which violated the anti-retaliation provisions of OSHA’s regulation for Recording and Reporting Occupational Injuries and Illnesses. USPS contested the citation and argued that (1) the alleged standard… Read more

Feb 27, 2019

New Rules on Lead Drinking Water Standards Delayed

The US EPA announced on February 25, that new drinking water regulations aimed at eliminating lead in water supplies have been returned to the US EPA’s staffers for revision. The announcement marks the eighth time that the EPA’s self-imposed deadline for revising the water quality standards has been delayed. Attempts to revise the standard began during the Obama administration, but it faced the major obstacle of how to require utilities to replace their lead pipes without imposing a massive unfunded mandate on these utilities. The EPA estimates that the cost to replace the public water supply pipes could cost between… Read more

Feb 20, 2019

New York Delays New Cleaning Product Labeling Enforcement Until October

The New York State Department of Environmental Conservation (“NYS DEC”) has announced that it will not enforce the first required disclosure milestone under the Household Cleansing Product Information Disclosure Program (the “Program”) until October 2, 2019. The Program requires manufacturers of covered cleansing products to identify all ingredients and impurities in their products and their content by weight and to post this information on their websites in accordance with several disclosure deadlines. Manufacturers employing more than 100 people were to disclose the following ingredients by July 1, 2019: intentionally added ingredients other than fragrance ingredients; and nonfunctional ingredients present above… Read more