Aug 302023

EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision

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Samuel B. Boxerman, Maureen F. Gorsen, Peter Whitfield and Caleb J. Bowers

The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.

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Aug 292023

California Air Resources Board Issues Clean Truck Check Implementation Guidance

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Maureen F. Gorsen, Samuel B. Boxerman and Caleb J. Bowers

On August 23, 2023, the California Air Resources Board (CARB) published additional guidance for the implementation of Clean Truck Check requirements under its Heavy Duty Inspection/Maintenance regulation. The requirements build on implementation guidance issued in June and set deadlines to achieve compliance with certain requirements beginning by December 31, 2023. Fleet owners and operators, and those contracting or brokering loads with heavy-duty trucks, should take note of CARB’s implementation timeline and prepare to comply with reporting and fee payment requirements beginning in the fourth quarter of 2023.

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Aug 172023

California Air Resources Board Revisits Advanced Clean Fleets Rule Through Formation of Truck Regulation Advisory Committee

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Samuel B. Boxerman, Maureen F. Gorsen, Aaron L. Flyer, Caleb J. Bowers and Marie E.A. Allison

In April 2023, the California Air Resources Board (CARB) passed its Advanced Clean Fleets (ACF) rule, which will require California medium- and heavy-duty truck and bus fleet owners with over $50 million in annual revenue to transition to zero emission vehicles through a phaseout of their existing internal combustion engine–powered vehicles by 2045. On July 26, 2023, while the ACF rule was pending with the California Office of Administrative Law for a final determination prior to release, CARB withdrew the regulatory package with the intention of resubmitting it “at a subsequent date.” CARB is now forming a Truck Regulation Advisory Committee and, on August 22, 2023, will host a public meeting to discuss and solicit feedback on future efforts to implement the ACF rule. Instructions for participation in this public meeting can be found here.

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Aug 162023

U.S. EPA Memo Offers Direction on Lithium Battery Recycling—Essential to the Future Supply Chain for Battery Electric Vehicles

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Samuel B. Boxerman and Drew Langan

Lithium-ion batteries are commonly used in a wide variety of applications, from medical devices to laptops — and now, increasingly, in electric vehicles (EVs). With the market for personal and commercial EVs growing, it is essential for U.S. manufacturers to have a secure, reliable supply chain of the critical minerals needed to produce EV batteries, including lithium, cobalt, nickel, and copper. Indeed, a recent study highlights the growing demand for these minerals — and the challenges the U.S. faces to meet this demand from mined sources.

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Aug 152023

Fourth Circuit Applies Major Question in Shrimping Clean Water Act Case

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Samuel B. Boxerman and Aaron L. Flyer

On Monday, the U.S. Court of Appeals for the Fourth Circuit affirmed a ruling by the U.S. District Court for the District of South Carolina finding that shrimping trawlers that disturb ocean floor sediment and discard other fish and marine organisms, or “bycatch,” after extracting shrimp from their nets are not discharging a pollutant under the Clean Water Act (Act). In so doing, the court made clear that neither discarding bycatch nor kicking up sediment already on the ocean floor constitutes the discharge of a pollutant or dredge or fill material that would otherwise require a permit by the Act.

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Aug 82023

Joint Office of Energy and Transportation Names Electric Vehicle Working Group Members

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Samuel B. Boxerman and Rose Quam-Wickham

On August 3, 2023, the Joint Office of Energy and Transportation — created through the Bipartisan Infrastructure Law to facilitate collaboration between the U.S. Departments of Energy (DOE) and Transportation (DOT) — officially announced the members of its Electric Vehicle (EV) Working Group, an independent advisory board. Parties interested in the growth of EVs in the United States should take note of the group, which will coordinate and consult on the development, adoption, and integration of EVs into the transportation and energy systems of the United States.

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Aug 32023

Regulated Entities in California Communities May Face More Investigation and Enforcement by California Air Resources Board

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Samuel B. Boxerman, Maureen F. Gorsen and Marie E.A. Allison

Regulated entities in designated communities — compiled and termed the “Consistently Nominated AB 617 Communities list” — will want to pay close attention to updates from the California Air Resources Board (CARB) on its Community Protection Program Blueprint 2.0. Currently, communities in the Bay Area, Imperial, San Joaquin Valley, Sacramento Metropolitan, and South Coast air districts are on the list. As part of a mandate to reduce toxic air contaminant and criteria pollutant emissions in communities that have a high cumulative exposure burden, CARB is updating the Program Blueprint 2.0 as required under Assembly Bill 617, adopted by the California Legislature July 26, 2017. CARB’s present revisions may result in increased investigation and enforcement of regulated entities in these communities.

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