The Revival of Supplemental Environmental Projects and How It May Impact Settlement Agreements Moving Forward

As the US Department of Justice (DOJ) begins to revive the use of Supplemental Environmental Projects (SEPs), it is likely that they will appear again with increasing frequency in settlement agreements moving forward.  DOJ received comments through July 11, 2022 on its interim final rule to revoke the Trump-era regulation that prohibited payments to non-governmental, third-party organizations who are not parties to an enforcement action—the regulation that effectively prohibited SEPs in settlement agreements.  This post will provide an overview of SEPs, regulations surrounding SEPs, comments received pertaining to the revival of SEPs, and the likely use of SEPs moving forward. 

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US EPA’S Draft Screening Level Approach May Broaden Scope of Chemical Risk Evaluations Under TSCA

Environment Strategy Planning

The United States Environmental Protection Agency (US EPA) continues to advance various aspects of its chemicals regulatory agenda under the Toxic Substances Control Act (TSCA). A key part of the Biden Administration’s revisions to the TSCA program is its planned new screening approach for assessing ambient air and water exposures to fenceline communities. This screening approach is intended to broaden the scope of chemical risk evaluations to include exposures to fenceline communities from air emissions and water discharges of chemicals undergoing risk evaluation. 

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US Supreme Court Limits EPA’s Authority to Regulate Carbon Emissions from Existing Power Plants Under Major Questions Doctrine with Implications for Agency Rulemaking Generally

Gas turbine electrical power plant

On June 30, 2022, the US Supreme Court held that the Obama-era Clean Power Plan (CPP) “[c]apping carbon dioxide emissions at a level that [would] force” energy generation shifting from coal to natural gas to renewables nationwide was not within the statutory authority that Section 111(d) of the Clean Air Act (CAA), codified as 42 U.S.C. § 7411(d), granted to EPA. West Virginia v. Env’t Prot. Agency, 597 U. S. ____, 2022 U.S. LEXIS 3268, at *54 (2022). Applying the major questions doctrine, the Court held that Congress must be express in granting EPA the authority to adopt the kind of transformational regulatory scheme that EPA tried to implement under Section 111(d).

Under the major questions doctrine, a court will not follow the general rule of deferring to an agency’s interpretation of a statutory provision in certain “extraordinary cases” that involve “highly consequential power beyond what Congress could reasonably be understood to have granted.” This typically occurs when (1) there is an issue of deep economic or political significance; or (2) Congress did not clearly give an agency authority over an issue. The Court found no reason to defer here. Read more about the case and potential broader implications of the Supreme Court’s decision here.

China’s New Pollutant Control Action Plan: A Focused Plan that Could Impact the Chemical Industry Outside of China

Chemicals Lab

It is no secret that China has long struggled with implementing measures for pollution control and regulating hazardous chemicals. We have watched this issue closely and published about it in years past here. However, on May 24, 2022, the China State Council issued its most focused plan yet, known as the “New Pollutant Control Action Plan” or “新污染物治理行动方案,” and it will likely have far-reaching impacts on companies manufacturing, using or discharging certain chemicals in China. It could also impact companies outside of China importing chemicals into China.

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US EPA Announces Drinking Water Health Advisories for Certain PFAS Chemicals

water drinking fountain

On June 15, 2022, US EPA issued its prepublication notice announcing final drinking water health advisories for PFBS and GenX, as well as interim drinking water health advisories for PFOA and PFOS.1

In this publication, we discuss US EPA’s recent announcement and consider how it could impact industries moving forward:

  • Drinking Water Advisory Levels for GenX, PFBS, PFOA and PFOS
  • National Primary Drinking Water Regulations for PFOA and PFOS
  • IIJA Grant Funding for Emerging Contaminants

To read the full publication, click here.

UK COVID-19 Public Inquiry Terms of Reference finalised and presented to the Prime Minister for approval

In April, we published an article about the UK COVID-19 Public Inquiry’s four-week long consultation process into its draft Terms of Reference (“TORs”), which will shape the scope of issues to be addressed by the Inquiry. Last month, the Inquiry published its summary report into the consultation, having analysed the 20,000 responses received, and meeting over 140 organisations across various sectors in roundtable discussions, as well as 150 bereaved families.

Finalised TORs

The public contributions have assisted the Chair of the Inquiry, Baroness Hallett, in revising the draft TORs. On 21 May, the Chair wrote to the Prime Minister advising him of the proposed changes and asking him to expand their scope to include:

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Heavy Duty Regulatory Update: CARB & US EPA Proposed Rulemaking for NOx Heavy-Duty Offroad and Onroad Truck Standards

Front view of truck

Our team at Squire Patton Boggs continues to track recent regulatory developments for the heavy-duty vehicle and engine sector. In our last blog post on this topic, we covered US EPA’s Cleaner Trucks Initiative, the California Air Resources Board’s (CARB’s) heavy-duty engine and vehicle omnibus regulation, and CARB’s Advanced Clean Trucks Regulation.

US EPA Heavy-Duty Highway Vehicles Proposed Rule Comment Period Ends

For the on-road heavy-duty trucking industry, US EPA finally issued its long-awaited proposed rule on March 7, 2022 for heavy-duty highway vehicles and engines beginning in MY 2027. Heavy-duty highway vehicles are generally those in weight categories ranging between 8,500 lbs to greater than 33,000 lbs GVWR. The comment period recently ended on May 13, 2022. This rule, entitled Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards, 87 Fed. Reg. 17414 (March 28, 2022), is the first step in EPA’s “Clean Trucks Plan.”  As identified in President Biden’s Executive Order 14037, Strengthening American Leadership in Clean Cars and Trucks, EPA intends to issue a series of regulations over the next three years to reduce pollution from trucks and buses and to advance the transition to a zero-emissions transportation future.

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US EPA Adoption of New Phase I ASTM Standard E1527 Delayed by Adverse Comments

Stacked Confidential DocumentsBack in November of 2021, ASTM International issued its revised Standard Practice E1527-21 to replace its 2013 version setting forth the specific procedures and requirements for environmental professionals preparing Phase I environmental site assessments.  Preparation of a Phase I report under this Standard satisfies one of the obligations under the All Appropriate Inquires (AAI) Rule for asserting the Bona Fide Prospective Purchaser (BFPP) protection to liability for property owners under CERCLA.  The new standard contains a number of substantive changes from the 2013 version, including the following:

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Are You Ready for the UK Plastic Packaging Tax?

The plastic packaging tax (the ‘Tax’) came into force on 1 April 2022, with UK businesses which produce or import plastic packaging components in quantities of 10 or more tonnes per year affected. However, despite already being in force, research conducted by YouGov, on behalf of Veolia, has found that a high proportion of retail and manufacturing businesses (77% of those surveyed) are still not aware of the Tax.

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UK Government publishes guidance on the implementation of the Food (Promotion and Placement) Regulations 2021

Supermarket shelvesThe Food (Promotion and Placement) (England) Regulations 2021 will come into force on 1 October 2022 and impact foods High in Fat, Salt and Sugar (HFSS) by introducing restrictions on volume offers and new rules on placement in retail stores and promotion. These include a 9 p.m. watershed on all advertising of HFSS foods and an outright ban on paid online advertising of HFSS foods, but additionally, the regulations prescribe the location where qualifying businesses must not place specified food inside a physical store.

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