Environmental Protection Agency

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.

EPA provides more detailed guidance on aftermarket safe zones while continuing to drive forward enforcement initiatives.

By Arthur F. Foerster

In 2019, the US Environmental Protection Agency (EPA) released its “National Compliance Initiatives” (NCIs) for years 2020-2023. EPA sets NCIs for what the agency believes are “the most serious environmental violations.”[1] One of those NCIs is to eradicate aftermarket defeat devices on emissions control systems for vehicles and engines. In the last few years, EPA has dedicated increased enforcement resources to pursue those who violate the defeat device and tampering prohibitions found in Section 203(a)(3) of the Clean Air Act (CAA).[2] Even with the pandemic, EPA has resolved more than twenty aftermarket “defeat device” and tampering enforcement cases.[3] EPA personnel recently released a report that estimates emissions controls have been removed from more than 550,000 diesel pickup trucks in the last decade, resulting in more than a half-million excess tons of oxides of nitrogen (NOx).[4] EPA’s enforcement efforts are expected to continue.

By Joel Beauvais and Claudia O’Brien

President Donald Trump, on February 28, signed an executive order (EO) directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to issue a proposed rulemaking for notice and comment to rescind or revise their joint 2015 Clean Water Rule, also known as the Waters of the United States or “WOTUS” rule. The rule was intended to clarify the jurisdictional scope of the Clean Water Act. Shortly after the EO was issued, the EPA and the Corps issued a notice indicating their intent to review and either rescind or revise the rule.

The EO and the agencies’ notice signal a potential move to substantially narrow the jurisdictional scope of the Clean Water Act (CWA). This is a critical issue for many sectors of the economy and environmental protection and has been the subject of uncertainty and litigation since the statute was enacted in 1972 — with the U.S. Supreme Court having issued three major decisions on the subject.

By Andrea Hogan, Lucas Quass, John Morris and Steven Mach

On January 13, 2017, the US Supreme Court granted certiorari for an appeal that will allow the Court to determine the proper jurisdiction for litigation challenging the Clean Water Rule (the Final Rule).[1] The federal Clean Water Act (CWA) provides for original jurisdiction in the Circuit Courts of Appeal for certain categories of actions taken by the US Environmental Protection Agency (EPA). By accepting review of the appeal, the Court will now decide whether to affirm the Sixth Circuit Court of Appeal’s assertion of original jurisdiction over litigation challenging the Final Rule, and in doing so, the Court will set the stage for consideration of Final Rule litigation on the merits. As a result of the Supreme Court’s grant of certiorari, on January 25, 2017, the Sixth Circuit Court of Appeal granted a motion to hold in abeyance the litigation over the Final Rule until the US Supreme Court reaches a decision regarding jurisdiction.

Clean Water Rule’s Broad Application

EPA and the US Army Corps of Engineers (Corps) jointly issued the Final Rule to define “waters of the United States” (WOTUS), a threshold term that delimits CWA’s scope and application. The Final Rule has broad application. It defines jurisdictional waters not only for Section 404 of the CWA (permitting for dredge and fill operations) but also under Section 303 (addressing water quality standards and maximum daily loads); Section 311 (relating to oil spill prevention and response); Section 401 (concerning state water quality certifications); and Section 402 (establishing the National Pollutant Discharge Elimination System (NPDES) permit program). Critics of the Final Rule argue that it expands federal jurisdiction significantly beyond the bounds of court precedent interpreting the CWA’s statutory mandate. We previously published a Client Alert that discusses the Final Rule’s scope and implications in greater detail.

By Michael Feeley, Winston Stromberg, Ann Claassen, Lucas I. Quass, John Morris, and Samantha Seikkula

On December 12, 2016, EPA published the final Formaldehyde Standards For Composite Wood Products Rule (the Rule) in the Federal Register. The compliance date for most aspects of the Rule is December 12, 2017, with a sell-through provision for wood composite products manufactured or imported prior to that date. The Rule limits formaldehyde emitted into the air from certain composite wood products, which are products made by binding strands, particles, fibers, veneers, or boards of wood together with adhesives.  Domestic and foreign companies operating in the U.S. use composite wood products to manufacture a wide variety of consumer products such as furniture, flooring, cabinets, children’s toys, and more.

EPA promulgated the Rule to implement the 2010 Formaldehyde Standards for Composite Wood Products Act (the Act), which Congress enacted as Title VI of the Toxic Substances Control Act (TSCA). The Act established emission standards that mirror the California Air Resource Board’s (CARB) Phase II standards for composite wood products—including hardwood plywood (HWPW), medium-density fiberwood (MDF), and particleboard (PB).[1]  Similar to the California requirements, the new federal Rule regulates composite wood products from initial manufacture to final sale by (1) imposing emissions restrictions; (2) regulating product labeling, chain of custody, non-compliant product sell-through, recordkeeping and enforcement; and (3) requiring certification by EPA-approved third-party certifiers (TPC) that conduct quality assurance activities, emissions testing, inspections and auditing services.

By Christopher Garrett, Andrea Hogan, Daniel Brunton, and Daniel Aleshire

On February 22, 2016, in a 2-1 decision, the US Court of Appeals for the Sixth Circuit determined it has jurisdiction over the numerous legal challenges to the Clean Water Rule (the Final Rule), thus siding with the position of the agencies that promulgated the Final Rule, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (together, the Agencies). The Final Rule was issued on May 27, 2015 and defines “waters of the United States,” a threshold term that determines the Clean Water Act’s (CWA) scope and application. Previously, on October 9, 2015, the Sixth Circuit stayed the implementation of the Final Rule nationwide, concluding that the challengers demonstrated a substantial possibility of success on the merits. In a fragmented decision, two of the panel’s judges found that under the Sixth Circuit precedent in National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir. 2009), the Sixth Circuit had jurisdiction over review of the Final Rule.

Sixth Circuit Issues Splintered Decision

Judge David W. McKeague delivered the Sixth Circuit’s opinion and concluded that the court has jurisdiction over challenges to the Final Rule under both 33 U.S.C. § 1369(b)(1)(E) and (F). Section 1369 identifies the seven types of actions by the EPA Administrator that are reviewable directly in the federal circuit courts.  Sections 1369(b)(1)(E) and (F) provide for review of actions “in approving or promulgating any effluent limitation or other limitation” under certain CWA sections and actions “in issuing or denying any permit under section 1342,” which governs the issuance of permits for the discharge of pollutants. In concluding that the Sixth Circuit had jurisdiction over review of the Final Rule under both provisions, Judge McKeague relied on a “functional” rather than “formalistic” construction of the CWA’s judicial review provision, an approach that the opinion states has been favored by courts, including the Supreme Court and the Sixth Circuit, over the past 35 years.

By Joshua T. Bledsoe, Marc T. Campopiano, and Max Friedman

As California begins to turn the page on the first chapter of its efforts to combat climate change through AB 32 and to prepare for greater emissions reductions over the coming decades, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are considering what these changes will mean for electricity transmission infrastructure. To that end, CEC Chair Robert Weisenmiller and CPUC President Michael Picker sent a letter to Cal-ISO President and CEO Stephen Berberich on July 31, 2015 asking him to participate in the planning stages of the Renewable Energy Transmission Initiative (RETI) 2.0. Since 2008, the first iteration of RETI has served as a statewide initiative to identify and implement the energy transmission projects needed to accommodate California’s renewable energy requirements.

Now, with Governor Brown’s executive order to cut California’s greenhouse gas emissions by 2030 and a number of legislative proposals advancing to set further greenhouse gas emissions reductions targets for 2030 and beyond, as well as the US EPA’s federal Clean Power Plan encouraging regional coordination among states to increase renewable electricity production, the CEC and CPUC feel that the time has come to bring RETI up to date.

By Paul Singarella, Chris Garrett, Andrea Hogan, Daniel Brunton, Garrett Jansma, John Heintz, Danny Aleshire and Lucas Quass

On August 27, 2015, the US District Court for the District of North Dakota issued a preliminary injunction against implementation of the Clean Water Rule (the Final Rule). The Final Rule defines Waters of the United States (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application. The Final Rule was issued on May 27, 2015, by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), with an effective date of August 28, 2015.

The Final Rule represented the first comprehensive effort since the 1980s to clarify through regulations the definition of WOTUS. In the Final Rule, EPA and the Corps expanded the definition of WOTUS in a manner that appears to assert jurisdiction over not only almost all waters and wetlands across the country, but also dry lands located between water bodies. Given the expansive scope of the Final Rule, it has been the subject of considerable controversy throughout the rulemaking and has been challenged in court by both states and industry.

By Andrea Hogan and Joshua Marnitz

On May 6, 2015, the US Senate Committee on Homeland Security and Governmental Affairs voted 12-1 in favor of a bill designed to streamline the Federal permitting process for major energy and infrastructure projects. The bill, first introduced in January 2015 by Senators Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri) as S. 280 or the Federal Permitting Improvement Act of 2015, will now proceed to the full U.S. Senate for consideration.

If passed, the

By Michael J. Gergen, Jared W. Johnson, and David E. Pettit

On June 19, 2014, the Federal Energy Regulatory Commission (“FERC” or “Commission”) conditionally accepted revisions to the California Independent System Operator Corporation’s (“CAISO”) FERC Electric Tariff to implement the CAISO’s proposed Energy Imbalance Market (“EIM”) that will allow neighboring balancing area authorities (“BAAs”) in the western states to participate in the imbalance energy portion of the CAISO’s real-time market.  Energy imbalance services have long been required as an “ancillary service” under FERC’s open access regulations and pro forma open access transmission tariff (“OATT”).  In its proposal, the CAISO noted that the EIM was effectively an expansion of its existing real-time energy market allowing to take part in the EIM alongside entities already transacting within the CAISO.  PacifiCorp’s two BAAs will be the first to participate in the EIM, and in a concurrent order, FERC also conditionally accepted in large part corresponding revisions to PacifiCorp’s OATT.  NV Energy has also entered into an implementation agreement with the CAISO to join the EIM.  Although several market participants protested various aspects of the CAISO’s proposed design of the EIM, most of it was approved by FERC.  The CAISO plans to start the new EIM on October 1, 2014.