Administrative Law Corner: The End of Federal Agency Guidance as We Know It? Not So Fast.

On October 9, 2019, President Trump signed two Executive Orders that could have a few significant impacts on federal government agency guidance documents moving forward. The White House says these two Executive Orders are “combating bureaucratic abuse and holding federal agencies accountable.” Our read is that in many ways the two Executive Orders actually just maintain the status quo. Still, there are a few directives that could make a real difference. Continue Reading

US EPA Proposes New Rule Modernizing and Streamlining EAB Review Process

On November 6, 2019, the U.S. Environmental Protection Agency (US EPA) proposed a new procedural rule titled “Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals” (the Proposal). The Proposal represents the first update to the Environmental Appeals Board (EAB) in 27 years.

Specifically, the Proposal would impact the EAB’s process for reviewing US EPA’s permitting decisions under the Clean Water Act, including National Pollutant Discharge Elimination System (NPDES) permits; the Safe Drinking Water Act’s Underground Injection Control (UIC) program; the Resources Conservation and Recovery Act (RCRA); and the Clean Air Act, including Prevention of Significant Deterioration (PSD) permits, Outer Continental Shelf permits, Title V permits, Acid Rain permits, Tribal Major Non-Attainment NSR permits, and Tribal Minor NSR permits.


The Environmental Appeals Board
The EAB was created in 1992 to hear administrative appeals of enforcement proceedings and US EPA-issued permits. To appeal one of the above-listed permits to federal court, a party must first file a notice of dispute with the EAB. EAB review is thus a necessary precondition for judicial review of a US EPA-issued permit.

Over the past 27 years, however, states have begun assuming greater delegated authority to issue permits under US EPA statutes. For example, 47 states and 1 territory have assumed authority to issue NPDES permits, and all 50 states have been approved to administer Title V permit programs. With the states’ increased role in the environmental permitting process, EAB’s caseload has been dramatically reduced. Accordingly, in 2010, the EAB initiated a voluntary ADR program “to promote faster resolution of issues and more creative, satisfying and enduring solutions” and “to promote better environmental outcomes.”  The Proposal boasts that the ADR program has been “highly successful, and, to date, over 90% of the cases that have gone through the program have been resolved without litigation.”

The Proposal entails two types of amendments to the EAB: (1) procedural changes to the EAB’s appeal process and (2) changes to the workings of the EAB. The overall purpose of these amendments is to expedite and streamline EAB review.

Proposed Changes to the EAB’s Procedural Requirements
First, the Proposal creates a new, time-limited and mandatory ADR process. US EPA describes this proposed process as “a fundamental change to the Agency’s long-held administrative exhaustion requirements.”  The new ADR program would require the Settlement Judge to convene a meeting of all parties within 30 days from the parties’ deadline to file a response to the notice of dispute. During the meeting, each party would meet privately and confidentially with the Settlement Judge to discuss the strengths and weaknesses of their case. At the conclusion of the meeting, the parties must unanimously decide whether to extend the ADR process or proceed with an appeal to the EAB. If the parties do not agree to proceed with either the ADR process or an EAB appeal, the notice of dispute would be dismissed and the underlying permit would become final. At that time, the permit could be challenged in federal court. The Proposal, therefore, makes a determination as to whether to participate in the ADR process a precondition to judicial review.

The Proposal would also limit the scope and standard of the EAB’s review to findings of fact and conclusions of law that are clearly erroneous.

Additionally, the Proposal seeks to eliminate amicus curiae participation in EAB appeals. US EPA states that eliminating amici participation would simplify the permit appeal process and hasten resolution of permit appeals by 15 days. US EPA notes that the public still has the opportunity to participate in permit decisions by filing comments to draft EPA permits, which “coupled with the vigorous briefing by the permit applicant, the Region, and other parties will ensure that the EAB becomes aware of any issues or positions that might otherwise be raised by amici.”

The Proposal would also eliminate the EAB’s current ability to perform sua sponte review of any condition of any RCRA, UIC, NPDES, or PSD permit decision for which review is otherwise unavailable.

Finally, to further expedite the EAB appeal process, US EPA also proposes the following changes: (1) a 60-day deadline for the EAB to issue a final decision on each case, measured from the date of oral argument or filing of the last brief, whichever is later; (2) a limit on the length of EAB opinions (the exact limit is still to be determined); and (3) a limit on the number of requests for extensions.

Proposed Changes to the Workings of the EAB
First, the Proposal seeks to enact a 12-year term for EAB judges, which the US EPA Administrator may choose to renew at the end of the 12-year period. This is a potentially significant change. Of the 12 judges who have served on the EAB, 4 judges have held their positions for 9 to 21 years with one judge serving for 24 years.

US EPA also proposes to create a process for identifying certain EAB decisions as precedential. Only published EAB decisions would be precedential, and the US EPA Administrator acting through its General Counsel would determine which EAB decisions should be published.

Finally, the Proposal seeks to create a mechanism by which the US EPA Administrator acting through its General Counsel can issue a dispositive legal interpretation in any matter pending before the EAB. This is the only proposed change that would impact the EAB’s adjudication of enforcement appeals. Under this proposal, the General Counsel could file written notice of the Administrator’s legal interpretation of a US EPA regulation or governing statute in an EAB proceeding.

Comment Period
US EPA will accept comments on the proposed rule for 30 days after its publication in the Federal Register. Comments may be submitted online here under Docket ID No. EPA-HQ-OGC-2019-0406. Squire Patton Boggs will closely monitor developments and provide updates on this issue.

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

Electronic NewsWe are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our September edition, we summarise 32 developments in the environmental, safety and health sector. Some of the top stories this month include:

  • The 2019 UK Modern Slavery Report is published
  • The Court of Appeal decides that the resources of a parent company should not be taken into account for sentencing unless there are special factors
  • The government issues updated guidance on preparing for Brexit
  • The government publishes the full Environment Bill
  • New Environment Agency guidance confirms the need for a climate change risk assessment with permit applications
  • The government has responded to the Climate Change Committee’s 2019 Progress Report
  • The latest data on clean air indicates that 83% of reporting zones still have illegal levels of air pollution
  • The Department for Business, Energy and Industrial Strategy is consulting on increasing the minimum energy efficiency standard for non-domestic private rented properties
  • The Financial Conduct Authority (FCA) has published a feedback statement on climate change and green finance
  • The European Chemicals Agency (ECHA) recommends a general ban of Bisphenol A (BPA), Dechlorane Plus and 16 other substances
  • The EU court rules on access to REACH joint submission

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website.  You can also subscribe to ensure you receive our most recent edition every month.

US EPA-California Tensions Over GHG Standards Increase with Preemption Challenge

Disagreements between California and the US Environmental Protection Agency (US EPA) over car production linegreenhouse gas (GHG) standards for automobiles have been simmering since 2018, but tensions between the two sides have recently increased after California entered into a voluntary agreement on GHG standards with a group of major automakers, followed swiftly by US EPA’s withdrawal of California’s authority to enforce its own GHG standards. California has challenged the withdrawal in court. The dispute over vehicle emissions standards is likely to result in significant uncertainty for the regulated community. Continue Reading

Potential Settlement Creates Uncertainty for US Supreme Court Case Regarding Clean Water Act Liability for Indirect Groundwater Discharges

On September 20, 2019, Maui County Council (Council) voted to settle the County’s pending appeal before the US Supreme Court of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. As previously reported here, the Ninth Circuit’s ruling held that the eventual migration of pollutants from permitted underground injection wells through groundwater into surface waters violates the Clean Water Act (CWA). The decision may portend an expansion of federal law, potentially subjecting a number of different wastewater sources (e.g., home septic systems, cesspools, etc.) to the CWA’s permitting requirements. Continue Reading

Offshore Wind Development in the US: Getting Your Supply Chain Right

In recent years, offshore wind costs have tumbled, leading to significant potential growth in the industry.  However, US offshore wind developers setting up their supply chains need to be prepared to navigate a complicated regulatory scheme involving overlapping federal and state laws, and adequately protect themselves with contracts that reflect the unpredictability of building wind turbines in the ocean.  Offshore wind supply chain ventures will also likely face environmental opposition, despite the clean energy moniker.  Our colleagues, Sarah RathkeEmily Huggins Jones, and Marissa Black, discuss the key issues offshore developers should keep in mind while building their supply chains.  The client alert may be accessed here: Offshore Wind: Getting Your Supply Chain Right.

US District Courts Start Applying Kisor v. Wilkie; Is Auer Deference Now a “Paper Tiger”?

As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”

After Kisor though, lower courts reviewing an agency’s interpretation of its own regulations should only defer if there is a genuine ambiguity, the regulatory guidance comes from the appropriate source, and the rationale for the agency’s interpretation is not litigation driven. The Kisor Court also instructed that interpretive issues that fall into a “judge’s bailiwick” are not entitled to deference. Judge Gorsuch concurring in the judgment predicted that Kisor’s guideposts would leave the Auer doctrine “zombified.” Two initial decisions applying Kisor reflect Kisor’s tension. Namely, while courts scrutinize agency interpretations, Auer deference remains intact.

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

Online NewsWe are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our September edition, we summarise 30 developments in the environmental, safety and health sector. Some of the top stories this month include:

  • Director Fined and Given Suspended Sentence After Health and Safety Executive (HSE) Investigation
  • Allergen Labelling Laws for Foods Prepacked for Direct Sale – New Legislation
  • Fine of £7.8 Million for Breach of Money Laundering Regulations
  • The Commission’s latest communication on no-deal Brexit preparedness indicates that only 52% of UK-based REACH registrants have transferred their registrations
  • ClientEarth has warned 105 local councils that they could face legal action if they fail to meet duties to include emissions reductions targets and policies in their local plans
  • The Court of Appeal Upheld a Decision to Refuse Planning Permission for a Housing Development on Air Quality Grounds
  • Chinese Food Company Has Received a Record Fine for Polluting a Sewer
  • European Chemicals Agency (ECHA) Publishes Information Requirements for the Future Waste Database
  • EU Court Upholds Decision by the European Chemicals Agency (ECHA) to List Bisphenol A (BPA) as an Endocrine Disrupting Chemical With an Impact on Human Health
  • Member State Experts Unanimously Back a Proposal of the European Commission to Increase the Compliance Check Target for REACH Registration Dossiers

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website.  You can also subscribe to ensure you receive our most recent edition every month.

Groundwater Contaminant Regulation in California: State Water Board Lowers Notification Levels and Announces First Step Towards Developing an MCL for Certain Compounds

In June of 2018, the California State Water Resources Control Board (State Water Board) Division of Drinking Water (DDW) provided recommendations for PFOA and PFOS notification levels.  On July 13, 2018, the State Water Board released guidelines based on DDW’s recommendations for testing and reporting on two PFAS compounds—PFOA and PFOS. The interim notification level for PFOA was 14 parts per trillion (ppt) and 13 ppt for PFOS. Notification levels are non-regulatory health-based advisory levels established by the DDW for chemicals in drinking water that lack an enforceable regulatory standard called a maximum contaminant levels (MCLs). In addition to setting interim notification levels for PFOA and PFOS, the State Water Board also included an interim response level of 70 ppt combined for PFOS and PFOA whereby if the combined level is exceeded, the State recommended the water system remove the source from service. These guidelines did not require public water systems to test for PFOA and PFOS, but did require water systems voluntarily opting to test to report if the notification levels were exceeded.

On July 31, 2019, AB 756 passed as the California Legislature’s first PFAS-related action. AB 756 adds Section 116378 to the California Health and Safety Code and authorizes the State Water Board to order a public water system to monitor for PFAS in accordance with conditions set by the State Water Board. Practical detection limitations currently reduce the scope of the law to 14-18 compounds.  The effect of the legislation is that the State Water Board can now require public water systems to test for PFAS. Continue Reading

Japanese Knotweed, Hybrids and UK Case Law – a growing concern?

Japanese KnotweedThis blog examines some of the latest developments in relation to the ongoing concerns over Japanese Knotweed and its hybrid forms.

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