EPA Postpones Effluent Limits for Power Plants

On April 25, the EPA postponed the remaining compliance dates for steam powered electric generation plants to implement more stringent effluent limits under the Clean Water Act.  EPA postponed the dates (some of which could have taken effect as early as November 2018) to reconsider the rule after receiving petitions from interested groups.

The rule requires more stringent technology-based effluent limitations guidelines and standards for particular waste streams at power plants, including: fly ash transport water, bottom ash transport water, flue gas mercury control (“FGMC”) wastewater, flue gas desulfurization (“FGD”) wastewater, gasification wastewater, and combustion residual leachate.  The rule set numeric limitations for the discharge of several pollutants (e.g., mercury, arsenic, selenium, and nitrate/nitrite) for FGD and gasification wastewater, and it imposed a zero discharge limitation for fly and bottom ash transport water, and FGMC wastewater.  The rule contained similar limitations for plants discharging to publicly owned treatment works.  Existing dischargers were expected to comply with the new limits as early as November 2018, but no later than December 2023.  The Federal Register notice for the rule may be found here.

The rule was subsequently challenged by the industry, and EPA was set to file its response with the Fifth Circuit Court of Appeals on May 4.  However, after the change in administrations, the industry petitioned the EPA to reconsider and stay the rule.  The industry argued that:

  • EPA’s use of confidential business information to withhold its analyses violated principles of transparency;
  • EPA did not demonstrate that some of the new effluent guidelines were technologically available or feasible for integrated gasification combined cycle and subbituminous coal plants;
  • EPA relied on out-of-date data in assessing bottom ash transport water; and,
  • EPA did not consider the cumulative impact of the new effluent guidelines and other new regulations affecting the steam powered electric industry.

In a letter to the industry groups, new EPA Administrator Scott Pruitt agreed to reconsider the rule and conduct new rulemaking to stay the compliance dates that have not yet passed.  Pursuant to the Administrator’s letter, the EPA postponed the rule’s compliance dates for existing dischargers to meet the new effluent limits.  Additionally, the Fifth Circuit granted EPA’s motion to stay the case until August so that EPA can reconsider the rule.

EPA Delays Clean Air Act RMP Rule Amendments

EPA recently proposed a rule to delay the effective date of amendments to its Risk Management Plan (“RMP”) rule under section 112(r) of the Clean Air Act. If finalized, the proposed rule would push the effective date to Feb. 19, 2019, nearly two years later than the original effective date.

In accordance with its decision to reconsider the RMP rule amendments, the EPA stayed the effective date of the rule. This stay, however, cannot exceed three months. Accordingly, on April 3, 2017, the EPA proposed a rule to further delay the effective date of the RMP rule amendments until Feb. 19, 2019, so that the EPA can fully evaluate the various petitions for reconsideration and take comment on issues in question. The EPA held a public hearing on the proposed delay on April 19, 2017. Comments on the proposed delay are due by May 19, 2017.

I recently published an article with more information on this proposed rule.

EPA Denies Petition to Revoke Tolerances and Cancel all Registrations of the Most Widely Used Conventional Insecticide in the U.S.

EPA recently issued an order denying a 2007 petition (the “Cancellation Petition”) by the Pesticide Action Network and the Natural Resources Defense Council that sought to revoke all tolerances under section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA) and to cancel all registrations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for pesticide products containing the active ingredient chlorpyrifos. Chlorpyrifos is a broad-spectrum, chlorinated organophosphate insecticide that has been registered for use in the United States since 1965. By pounds of active ingredient, it is the most widely used conventional insecticide in the country.

According to the EPA, it ultimately premised its order on its conclusion that more time is needed to study the effects of chlorpyrifos. Because the EPA is not required by FIFRA to complete its registration review of chlorpyrifos products until Oct. 1, 2022 (despite the EPA’s prior policy decision to complete the registration review sooner), the EPA simply denied the Cancellation Petition and claimed it will reach a final decision on the safety of chlorpyrifos sometime before its Oct. 1, 2022, deadline under FIFRA.

Read more about the Cancellation Petition and the EPA order in an article I recently published here.

EPA Notifies Registrants of Pesticide Products with Water Soluble Packaging of New Label Requirements

EPA issued a press release on April 6 stating that it has sent revised labeling instructions to registrants of pesticide products with water soluble packaging. When used properly, water soluble packaging can significantly reduce handler exposure during the mixing and loading of pesticides. Indeed, EPA has viewed the added safety features of water soluble packaging as supporting its classification as a closed mixing/loading system under the Agricultural Work Protection Standard. However, EPA believes some pesticide handlers are engaging in unintended (and improper) practices that undermine the purported safety features of water soluble packaging. Examples of improper practices include spraying the products with high-pressure water and intentionally breaking water soluble bags.

Accordingly, EPA has worked with state officials and affected pesticide registrants to develop improved label language to eliminate misuse and protect pesticide handlers. The new label language includes detailed, step-by-step instructions specifically designed to correct misuse and protect pesticide handlers from exposure. Because the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (which governs the sale and use of pesticides in the United States) requires pesticide users to properly follow a pesticide label’s directions for use, pesticide handlers will be legally required to comply with any new label instructions for pesticide products in water soluble packaging.

Please contact me with any questions regarding FIFRA or the sale, use or handling of pesticide products.

Trump’s March 28 Executive Order Rescinds Energy Rules and Guidance and Forces Agency Self-Evaluation

President Trump’s March 28 executive order titled “Presidential Executive Order on Promoting Energy Independence and Economic Growth” immediately rescinds numerous energy-related rules and guidance issued during President Obama’s term in office. In addition, President Trump’s executive order broadly requires agencies to evaluate their regulations affecting the development or use of domestic energy supplies and to suspend, revise or rescind any regulations that “unduly burden” the development of domestic energy resources. The executive order reflects President Trump’s stated desire of rolling back Obama-era energy regulations and promoting domestic energy resources. A more detailed summary of the executive order can be found in an article I recently published here.

A Lesson Learned – Important considerations for your commercial real estate due diligence checklist

Two commercial property owners find themselves responsible for decades-old environmental contamination because they failed to conduct proper environmental due diligence before their purchase and they bought short-tail, claims-made insurance policies with a claims-in-process exclusion that did not offer any protection against long-tail environmental claims.

Under federal and state environmental laws, people who buy a contaminated property are strictly liable for the investigation and remediation of every molecule of environmental contamination on the property from the beginning of time, no matter how it got there and no matter how much it costs to clean it up, until they achieve regulatory closure.

If, however, a buyer can establish that he is a bona fide prospective purchaser, then he may be able to buy the property free and clear of such liability, provided that he meets certain conditions, such as not impeding remedial efforts and not aggravating the spread of contamination.

In an article that I recently published, I cover the issues these property owners faced, discuss what happened to the purchasers and provide my thoughts on how the outcome could have been different.

EPA Publishes the Hazardous Waste Generator Improvements Rule

The Environmental Protection Agency recently published the Hazardous Waste Generator Improvements Rule (“HWGIR”), offering improvements to the Resource Conservation and Recovery Act’s (“RCRA”) Hazardous Waste Generator Regulatory program enacted in 1980. The new rule brings over 60 changes, which are intended to clarify existing requirements, increase flexibility and improve the rule’s usability by the regulating community. I invite you to read an article that I recently published that summarizes a few of the more significant changes.

EPA Announces Final Ecological Effects Test Guidelines (Series 850) Under TSCA, FIFRA and FFDCA

On Dec. 29, 2016, EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) announced the availability of new final test guidelines in Series 850 Group A, pertaining to measuring the Ecological Effects of chemicals on Aquatic and Sediment-dwelling Fauna and Aquatic Microcosms. The new test guidelines include revised standards as well as several name changes to the Group A sub-categories. OCSPP’s changes to the guidelines will affect the registration of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the setting of tolerances/tolerance exemptions for pesticide residues under the Federal Food, Drug and Cosmetic Act (FFDCA), and EPA’s decision-making process in determining potential regulation of industrial chemicals under the Toxic Substances Control Act (TSCA).

OCSPP’s test guidelines serve as a compendium of accepted scientific methodologies and protocols for providing data to inform regulatory decisions regarding pesticides and chemical substances under FIFRA, FFDCA, and TSCA. The test guidelines are used by EPA, the public and companies that submit data to EPA. As guidance documents, the guidelines are not binding on EPA or any other outside parties, and EPA is allowed to depart from the test guidelines where circumstances warrant and without prior notice. Nonetheless, the procedures contained in the test guidelines are still recommended by EPA for generating the data that are the subject of the test guidelines (although EPA recognizes that departures may be appropriate in specific situations). Alternatives to the test guidelines may also be proposed by members of the regulated community, and EPA will assess them for appropriateness on a case-by-case basis.

Regulated companies, and in particular, pesticide manufacturers, should take note of EPA’s new guidelines when performing testing of chemicals under FIFRA, FFDCA, and TSCA.

You can access the Federal Register Notice here.

EPA Removes 72 Pesticide Inert Ingredients from its Approved List

EPA recently identified 72 inert ingredients that it is removing from its approved list for use in pesticide products. While removal of these ingredients from the approved inert ingredient list does not, by itself, restrict their use in a pesticide product, it does change the way a pesticide registration containing such inert ingredients will be processed in the future.  Once removed from the approved list, an inert ingredient is considered a “new” inert ingredient, which must be approved by EPA before it can be included in a registered pesticide product. The type of data needed to evaluate a “new” inert ingredient may include, among other things, studies to evaluate potential carcinogenicity, adverse reproductive effects, developmental toxicity, genotoxicity, and environmental effects associated with any chemical that is persistent or bioaccumulative. As such, removal of these inert ingredients from the approved list will increase the cost (and time) for companies seeking to use them in pesticides in the future.

While EPA’s records indicate that none of the 72 inert ingredients are used in currently-registered pesticide products, pesticide manufacturers should nonetheless confirm that their products do not contain such ingredients. In addition, companies seeking in the future to register pesticide products containing any of the 72 inert ingredients should plan accordingly to develop the necessary data to demonstrate to EPA’s satisfaction that the use of such inert ingredients is safe.

A summary of all 72 inert ingredients removed from EPA’s approved list can be accessed here.

U.S. EPA Adds Vapor Intrusion to the Superfund Hazard Ranking System, But Will It Last?

U.S. EPA Administrator Gina McCarthy signed the rulemaking to add Subsurface Intrusion (i.e., vapor intrusion and contaminated groundwater intrusion) to the Superfund Hazard Ranking System on Dec. 7, 2016. EPA issued a statement that it does not intend to systematically re-evaluate previously scored sites, but there is nothing to preclude the re-scoring of such sites to be eligible for the Superfund National Priorities List. Here are the links for the Federal Register Pre-Publication Notice, Frequently Asked Questions, and the Interim Subsurface Intrusion SCDM Values for Eligible Substances Table.

I fully expect EPA to continue to push new regulations before the Trump-Pence Administration takes office. However, on his first day in office as Governor, Mike Pence issued a “Regulatory Moratorium” ordering that all agencies suspend rulemaking action on any proposed rules for which a notice of intent to adopt a rule or other notice was not properly published before his first day as Governor. Executive Order 13-03. The purpose of the administrative-rulemaking moratorium was to “reduc[e] the regulatory burden [and] promote citizens’ freedom to engage in individual, family, and business pursuits [and] permit [the Office of Management and Budget] to devote resources to a comprehensive evaluation and rigorous cost benefit analysis of existing administrative rules.” It’s fair to expect that President Trump will issue a similar regulatory moratorium, especially given his announcement of Oklahoma Attorney General E. Scott Pruitt to lead EPA. Attorney General Pruitt is nationally well-known for what he has described as fighting EPA’s “leadership’s activist agenda and refusal to follow the law.”

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