DOI Seeks Comments on Proposal to Expand Natural Resource Damage Assessment Procedures

By Latham & Watkins on January 26, 2023 Posted in Environmental Regulation

The advanced notice of proposed rulemaking signals DOI’s interest in developing faster and more cost-effective methods to quantify natural resource damage claims.

By Kegan A. Brown, Gary P. Gengel, G. Jack Mathews, and Thomas C. Pearce

On January 18, 2023, the US Department of the Interior (DOI) Office of Restoration and Damage Assessment issued an Advance Notice of Proposed Rulemaking (the Notice) requesting feedback on possible amendments to the “simplified” natural resource damage assessment (NRDA) regulations for discharges of oil or hazardous substances (known as “Type A” NRDA regulations). DOI proposes to “modernize the Type A process and develop a more flexible and enduring rule” by, among other things, broadening the universe of natural resource damage (NRD) claims that may be subject to Type A procedures.[1] DOI has requested public comments on possible revisions to the Type A NRDA regulations by March 20, 2023.

EPA Proposes New Enforcement Initiative for PFAS

By Latham & Watkins on January 13, 2023 Posted in Chemical Regulation, Environmental Regulation

The notice is another step in EPA’s PFAS Strategic Roadmap and emphasizes potential CERCLA enforcement.

By Kegan A. Brown, Gary P. Gengel, Thomas C. Pearce, and Taylor R. West

On January 12, 2023, the US Environmental Protection Agency (EPA) issued a notice to solicit public comments on its National Enforcement and Compliance Initiatives (NECI) for Fiscal Years 2024-2027. The notice proposes a new NECI to address per- and polyfluoroalkyl substances (PFAS) contamination, with a “focus on implementing the commitments to action made in EPA’s 2021-2024 [PFAS] Strategic Roadmap.”[1]

The proposed PFAS NECI emphasizes EPA’s intention to identify and pursue potentially responsible parties for PFAS contamination, including under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

EPA Updates Standards and Practices for All Appropriate Inquiries (AAI)

By Latham & Watkins LLP on December 28, 2022 Posted in Contaminated Properties & Waste, Environmental Regulation

EPA adopts final rule, effective February 13, 2023, establishing ASTM E1527-21 as the standard for satisfying AAI requirements and phasing out ASTM E1527-13.

By Aron Potash, Josh Marnitz, Phil Sandick, and Bruce Johnson

On December 15, 2022, the US Environmental Protection Agency (EPA) amended its rule for conducting “All Appropriate Inquiries” (AAI) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to incorporate a new standard for conducting Phase I Environmental Site Assessments (Phase I). Satisfying AAI is a critical step when acquiring or leasing real property. AAI is a prerequisite to certain safe harbors under CERCLA (and state analogues), which otherwise subjects property owners and operators to liability for investigating and remediating contamination regardless of fault.

When EPA’s final rule for conducting AAI (AAI rule) takes effect on February 13, 2023, it will allow for the use of the updated standard for conducting Phase Is recently published by ASTM International (ASTM) (i.e., ASTM E1527-21) when conducting AAI. One year after the final rule goes into effect, the previous Phase I standard, ASTM E1527-13, will no longer be sufficient to satisfy AAI. ASTM E1527-21 incorporates several changes that distinguish it from E1527-13, including expanding requirements for using historical sources, updating guidance on emerging contaminants, and expanding reporting requirements.

CARB Adopts Final 2022 Scoping Plan

By Latham & Watkins on December 16, 2022 Posted in Air Quality and Climate Change, California

The plan accelerates already ambitious climate goals for California and charts a course to carbon neutrality by 2045.

By Joshua Bledsoe, Jen Garlock, and Brian McCall

On December 15, 2022, the California Air Resources Board (CARB) adopted its Final 2022 Scoping Plan for Achieving Carbon Neutrality (Final Scoping Plan). Assembly Bill (AB) 32 requires CARB to develop and update every five years a scoping plan that describes the approach California will take to reduce greenhouse gas emissions (GHGs) to combat climate change. AB 32 originally set a target of reducing emissions to 1990 levels by 2020. After California met this goal, Senate Bill (SB) 32 strengthened the state’s GHG reduction target to at least 40% below 1990 levels by 2030. California committed to even greater targets this year with adoption of AB 1279, which directs the state to become carbon neutral no later than 2045.

European Parliament and European Council Reach Provisional Agreement on Carbon Border Adjustment Mechanism

By Latham & Watkins LLP on December 16, 2022 Posted in Carbon Offsets, European Environmental and Public Law

By Paul A. Davies, Michael D. Green, and James Bee

The CBAM would seek to mitigate carbon leakage through the imposition of a levy on carbon-intensive imports into the EU, while free allowances under EU ETS would be phased out.

On 13 December 2022, negotiators from the European Parliament and European Council reached a provisional and conditional agreement on the terms of the EU’s carbon border adjustment mechanism (CBAM).

The CBAM was initially proposed by the European Commission in July 2021 as part of its “Fit for 55” package of policies. The measure seeks to address and mitigate the risk of “carbon leakage” from the EU, which refers to the risk that the EU’s greenhouse gas reduction efforts will be offset by increasing emissions outside of its border through the relocation of production to non-EU countries with less ambitious emissions reduction policies.

The CBAM would impose a levy on in-scope goods that are imported into the EU. Importers of such goods would be required to pay an amount equal to the cost of the emissions allowances under the EU Emissions Trading System (ETS) that would have been necessary to pay to produce that good in the EU.