Four Things to Know About US EPA’s Draft WOTUS Rule

A swamp in the middle of the clearing

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process to revise the definition, consistent with one of the first Executive Orders issued by President Trump.  The Clean Water Act prohibits the unpermitted discharge of pollutants, including soil or fill material in water bodies, wetlands and even some normally-dry lands.  Accordingly, as the definition of waters of the United States (WOTUS) expands, so does the federal government’s control over construction and other activities affecting these areas.  The Agencies note that they are attempting to “preserve[] the traditional sovereignty of States over their own land and water resources[,]” and the proposed rule is widely expected to narrow the overall number of waters subject to federal jurisdiction.

The comment deadline on the proposed rule is April 15 — there are four points to be aware of in deciding whether to comment on the proposal: Continue Reading

February 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the February edition, we summarise 19 developments in the environmental, safety and health sector. Top stories this month include:

  • A Health and Safety Executive press release reporting the £600,000 fine of a contractor after an employee was killed by a dumper truck
  • The £274,000 fine of a food company after two workers suffered injuries as a result of being trapped in machinery
  • The fatal fall of a worker leading to two companies being fined a total of £860,000
  • A successful asbestos compensation claim for an electrician against a previous employer

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

US EPA Approves Missouri’s Innovative Approach to Limiting Nutrient Pollution

In December 2018, the US EPA approved Missouri’s standards for limiting nutrient pollution in lakes and reservoirs in the state. The Agency’s approval comes after years of past debate and litigation between US EPA and Missouri over the state’s approach to nutrient criteria and, notably, represents a reversal from US EPA’s Obama-era opposition to the state’s proposed standards. It is likely that Missouri’s framework will be used as guidance by other states in developing their approaches to lake and reservoir nutrient pollution, and it may be that US EPA’s approval will embolden states to deviate from the federally-recommended numeric nutrient criteria and develop customized plans. Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own regulations. This development could give businesses—particularly those in highly regulated industries—more opportunities to challenge, limit, or at least better anticipate their regulatory burden.

This term in Kisor v. Wilkie, the US Supreme Court will consider whether to overturn Auer deference; the rule that courts must defer to an agency’s construction of its own regulation unless that interpretation “is plainly erroneous or inconsistent with the regulation.” This development fits with the broader trend that we identified last year—the Court’s growing skepticism about deferring to legal determinations made by administrative agencies. Last year, we explained the Court’s hostility to Auer deference’s controversial cousin, the Chevron doctrine, which requires courts to defer to an agency’s reasonable interpretation of a statute. Continue Reading

January 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Online NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the January 2019 edition, we summarise 27 developments in the environmental, safety and health sector. Top stories this month include:

  • Post-Brexit environmental guidance set out in the Environment Bill, which introduces principles that will apply in place of the EU treaty principles after Brexit
  • The publishing of Defra’s long-awaited Resources and Waste Strategy for England, which looks at several issues in relation to various types of waste
  • An Environment Agency proposal to revise its public participation statement for environmental permitting
  • Defra issuing its Clean Air Strategy, intended provide a stronger legislative framework for future action on air pollution
  • Environment Agency guidance on environmental permitting compliance and its response to last year’s consultation changes to permit compliance scoring

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due to the shutdown. On February 6, 2019, EPA announced that the hearing will now be held on February 27 and 28, 2019.   The Office of the Federal Register has not yet published the proposed rule, which will start the clock on the 60-day comment period.

Because it determines the scope of the Clean Water Act, the definition of “waters of the United States” has been a hot-button issue since it was amended, and significantly broadened, by the Obama administration in mid-2015.   The 2015 rule was challenged by 31 states and numerous other stakeholders in multiple lawsuits. In October 2015, the Sixth Circuit issued a nationwide stay of the rule. The nationwide stay was lifted when the US Supreme Court determined on January 13, 2017 that review of the rule falls within the jurisdiction of the district courts.   Although the nationwide stay is no longer in effect, decisions by the US District Courts for the Districts of North Dakota, Southern District of Georgia, and Southern District of Texas, preliminarily enjoining the 2015 rule in 28 states remain in effect. Thus, the Obama-era rule is in effect in only 22 states, the District of Columbia, and US territories.

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Latest News and Perspectives on California Prop 65

The latest news and perspectives on California’s Proposition 65 (Prop 65) track the passage of the newly-amended Clear and Reasonable Warnings regulations under Prop 65, which took effect on August 30, 2018. Significantly, plaintiffs have started to target companies whom they believe to not be in compliance with the newly-amended regulations.  Read more below about this and other important recent updates since the new Prop 65 regulations became effective, including the updated comment deadline of January 11, 2019, on proposed amendments:

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December 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Online NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”.  In the December edition, we summarise 29 developments in the environmental, safety and health sector. Top stories this month include:

  • Three companies, all operating on the same site found liable after security killed and fined £1.4 million.
  • OPSS launches guide for consumers on “shopping safety for children at Christmas” after reports of potential safety issues with counterfeit goods
  • CPS find bus company guilty of breaching Health & Safety and issue a fine of £2.3 million
  • A water company has donated £975,000 to local charities after a water pollution offence

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

US EPA Issues Proposal to Freeze Tailpipe Emission Standards

The United States Environmental Protection Agency (US EPA) and the National Highway Traffic Safety Administration (NHTSA) issued a proposed rule regarding existing Corporate Average Fuel Economy (CAFE) and tailpipe greenhouse gases (GHG) emission standards for passenger cars and light-duty trucks on August 24, 2018. With this proposal, US EPA’s goal is to finalize a rule that would freeze standards rather than provide for increasingly stringent standards, which was the plan set by the previous rule under the Obama Administration. The proposed rule would also revoke California’s authority to set its own GHG emissions standards for passenger cars and light-duty trucks more stringent than federal standards.

We previously reported on the lawsuit filed by a number of states in response to US EPA’s announcement that it would be rolling back tailpipe emission standards. Eighteen states petitioned the D.C. Circuit Court of Appeals for review of US EPA’s determination that it would revise the GHG standards. US EPA’s decision to do so was a reversal of its initial determination, made pursuant to the mid-term evaluation prescribed by rule, that the GHG standards remained appropriate for the period through model year (MY) 2025.

In response, US EPA filed a motion to dismiss the case for lack of jurisdiction, arguing that judicial review would be improper because US EPA’s decision to initiate a rulemaking concerning the emission standards did not constitute final agency action. Petitioners argued in response that the Agency was attempting to skirt judicial review and simply “wipe the administrative slate clean.”

On November 21, 2018, the court announced that it would review the Petitioners’ challenge to US EPA’s determination to revise the standards on the merits. Continue Reading

US OSHA Continues Emphasis on Excavation and Trenching Safety

SafetyEffective October 1, 2018, the US Occupational Safety and Health Administration (OSHA) updated its National Emphasis Program (NEP) on Trenching and Excavation, with the intent of describing “policies and procedures . . . to identify and to reduce hazards which are causing or likely to cause serious injuries and fatalities during trenching and excavation operations.”  The updated NEP replaces the original 1985 CPL 02-00-069 – Special Emphasis: Trenching and Excavation and, among other things, establishes a requirement for each Area Office/Region to develop and implement outreach programs in support of the emphasis program, including the provision of compliance assistance materials for employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies, and plumbing companies (“stakeholders”). Continue Reading

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