Archives: EPA

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EPA Provides Flexibilities to Manufacturers of “List N” Disinfectants for Use Against Coronavirus

EPA on March 31 provided a formal relaxation of certain FIFRA requirements for pesticides listed on EPA’s “List N” of products expected to be effective against the coronavirus.  This temporary policy relaxes requirements to receive EPA approval of changes in sources of certain common active ingredients—such as ethanol, hydrogen peroxide, and citric acid—in response to … Continue Reading

DOJ Moves to Eliminate Supplemental Environmental Projects from Settlements

Amidst the disruption caused by the coronavirus pandemic (but not specifically relating to it), the Department of Justice has announced a major shift in policy towards settling environmental cases.  DOJ, and EPA along with it, will no longer offer settling defendants the option of undertaking supplemental environmental projects in lieu of paying penalties to the … Continue Reading

EPA Is “Especially Concerned” About FIFRA Noncompliance in Light of COVID-19 Pandemic

EPA on March 26 released a guidance document explaining its approach to enforcement actions in light of the COVID-19 pandemic.  While most aspects of that document explain areas in which EPA exercising enforcement discretion to provide flexibility to regulated parties in response to the pandemic, EPA is not taking that approach with respect to antimicrobial … Continue Reading

New EPA and OSHA COVID-19 Guidance Underscore the Importance of Securing Pesticide Approval under EPA’s Emerging Viral Pathogens Policy

Under EPA’s 2016 Emerging Viral Pathogens policy, pesticide registrants can obtain EPA “pre-approval” for their product to make claims to kill emerging viral pathogens when the policy is “activated,” so long as the pesticides have been approved for use on similar viruses.  These include common household and workplace disinfectant products, which are generally regulated as … Continue Reading

EPA Releases Comprehensive Guidance Database, With Significant Ramifications for Auer Deference

EPA on February 28 released a web portal containing links to “all of EPA’s active guidance documents,” as required by last year’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” In total, EPA’s portal contains over 9,100 guidance documents, from EPA’s various Headquarters offices and each of its 10 Regions. … Continue Reading

The Environmental Protection Agency’s (EPA) Proposed Changes to State and Tribal Certification Authority under Clean Water Act Section 401

Companies seeking approval for pipelines got some encouraging news from a Trump Administration proposal to cut back on states’ authority to block pipelines by withholding state water quality approvals, but environmentalists and states continue to express skepticism and are likely to sue. On August 22, the EPA proposed its Updating Regulations on Water Quality Certification  … Continue Reading

Kisor v. Wilkie Creates Significant Uncertainties Regarding Deference to EPA

The Supreme Court’s much-awaited decision in Kisor v. Wilkie will have significant ramifications for the Environmental Protection Agency (“EPA”) and environmental law.  While the decision upheld the concept of Auer deference, which instructs courts to defer to agencies’ interpretations of their own regulations, it also imposed a number of limitations and restrictions on when Auer … Continue Reading

Supreme Court Decision Expands Scope of FOIA’s Exemption for Confidential Information, with Significant Implications for EPA

The Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader Media has significantly expanded the confidential commercial information protected from disclosure under the Freedom of Information Act (“FOIA”)—an issue that recurs repeatedly with respect to information submitted to EPA and other environmental regulatory agencies. … Continue Reading

EPA Publishes Final Hazardous Waste Pharmaceuticals Rule, With Significant Implications for Pharmaceuticals and Product Recalls

EPA published today in the Federal Register its final rule governing hazardous waste pharmaceuticals.  This rule adopts a novel scheme under the Resource Conservation and Recovery Act (“RCRA”) for the management of hazardous waste pharmaceuticals that are discarded by healthcare facilities or managed by “reverse” distributors.  It also applies to other types of products such … Continue Reading

Trump EPA Expands Rigorous Enforcement of Pesticide Law as Part of “Return to Core Mission”

Despite its deregulatory efforts in other areas, the Trump administration continues to enforce pesticide laws rigorously as part of its stated goal of returning EPA to its “core mission.”  EPA regulates pesticides pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq.  “Pesticides” are broadly defined … Continue Reading

EPA and CARB Begin Reexamining Heavy-Duty Vehicle Regulations

On November 13, 2018, the U.S. Environmental Protection Agency (EPA) launched its Cleaner Trucks Initiative (CTI), which will decrease nitrogen oxide (NOx) emissions by updating the existing NOx standard for heavy-duty trucks. EPA’s announcement comes just as the California Air Resources Board (CARB) updated its Heavy-Duty On-board Diagnostic (HD OBD) requirements and prepares to implement … Continue Reading

The New Administration Releases An Executive Order and A Series of Memoranda On Energy and Environmental Issues

The Trump administration has issued an Executive Order and a series of memoranda relating to energy and the environment. The goal of the Executive Order–Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects–is to expedite environmental reviews and approvals.  It provides that action by the Chair of the Counsel of Environmental Quality to designate … Continue Reading

EPA to Hold Public Meeting on Nanoscale Materials Proposed Rule

EPA has scheduled a stakeholder meeting in Washington, D.C. on June 11 to discuss its proposed nanoscale materials rule under the Toxic Substances Control Act (TSCA).  The proposed rule would require manufacturers of nanoscale materials to provide EPA certain information, including health and safety-related information, regarding their nanoscale materials.  Public comments are due by July … Continue Reading

Obama Administration Releases Spring Regulatory Agenda

On May 21, 2015, the Office of Management and Budget (OMB) released the Obama Administration’s Spring Unified Agenda, providing greater details about the President’s strategy to rely on executive actions for carrying out his energy and environmental initiatives. The agenda’s release—specifying the upcoming actions that the Administration will be taking by regulation—comes at a time … Continue Reading

EPA Clarifies Standards for CERCLA Assessments

In a move designed to provide greater certainty to those purchasing, selling, or evaluating industrial or commercial properties, the Environmental Protection Agency (EPA) recently proposed to remove any lingering effect of ASTM International’s E1527-05, a nine-year-old industry standard practice for evaluating potentially contaminated sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As … Continue Reading

ECOS Releases Comprehensive Clean Air Act Memo With GHG Implications

In accord with the President’s June 2013 Climate Action Plan, EPA plans to use existing Clean Air Act authority to develop greenhouse gas emissions (GHG) standards for new and existing sources.  The scope of EPA’s authority under existing law is important given the lack of Congressional action to specifically address GHGs. The Environmental Council of … Continue Reading

White House Releases Strategy to Reduce Methane Emissions

On March 28, 2014, the White House released its “Climate Action Plan – Strategy to Reduce Methane Emissions.”  The plan summarizes the Administration’s strategy to reduce methane emissions from several sources.  The strategy includes proposing new standards, new rules, new voluntary strategies and programs and new regulations.   The plan outlines measures to reduce emissions and … Continue Reading

Proposal: Manage Impacts of Clean Air Rules on Regional Bases

EPA’s current efforts to curb CO2 emissions from power plants are controversial due to their potential impacts on the cost of electricity and the reliability of the grid given the announced retirements of many coal-fired plants. The ISO/RTO Council (IRC), representing the operators of the regional electricity grids, has made two proposals for managing regional … Continue Reading

EPA’s Environmental Appeals Board Rejects Attempt to Require Additional Greenhouse Gas Limits in a Natural Gas Power Plant Permit

EPA’s Environmental Appeals Board has rejected the Sierra Club’s attempt to require certain greenhouse gas (GHG) limits in a preconstruction permit for a new natural gas power plant, in one of the first EAB decisions to address this issue.  In re: La Paloma Energy Center, LLC, PSD Appeal No. 13-10 (EAB Mar. 14, 2014).  In … Continue Reading

Proposed Rules Requiring Carbon Capture at New Coal Power Plants Would Nearly Double Costs

Carbon dioxide (CO2) capture and storage (CCS) technologies, used for decades in industries that could produce revenue from the use of CO2 to offset the high costs, have more recently come to the forefront of clean energy policy as a way to reduce CO2 emissions from new and existing coal-fired power plants. In 2013, President … Continue Reading

EPA Approves Texas Clean Air Act SIP

After years of controversy, EPA has announced it is planning to approve Texas’ Clean Air Act State Implementation Plan (SIP).  EPA had previously rejected Texas’ SIP, contending that is program was incompatible with federal requirements.  In particular, Texas objected to EPA’s requirement that they install a permitting regime for Greenhouse Gas (GHG) emissions. However, in … Continue Reading

President Obama’s State of the Union Continues a Central Focus on Energy and the Environment

Tonight’s State of the Union highlighted that energy and environmental issues will continue to play a central role in the Washington agenda over the next year.  From the President’s early reference to workers building fuel efficient cars, to his extensive discussion of next steps on energy and the environment, it is clear that the President … Continue Reading

EPA Proposes New Power Plant Carbon Dioxide Emissions Rules

EPA has formally proposed restrictions on carbon dioxide emissions from new power plants, which include a requirement that new fossil fuel-fired plants implement partial carbon capture and sequestration.  EPA published the proposal in the Federal Register on January 8, 2014.  79 Fed. Reg. 1,430 (Jan. 8, 2014).  Comments on the proposal are due by March … Continue Reading
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