Southern District of Texas Enjoins New Waters of the United States Rule
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
U.S. EPA Proposes First Enforceable PFAS Water Contamination Levels
On March 14, 2023, the U.S. Environmental Protection Agency (EPA) proposed its long-anticipated National Primary Drinking Water Regulation (NPDWR) to limit six common types of PFAS in drinking water. This is the first time EPA has sought to establish legally enforceable national PFAS[1] contamination levels for drinking water. This step represents the latest action under the Biden administration’s multistep plan to limit PFAS levels in the United States, building upon EPA’s October 2021 PFAS Strategic Roadmap and its pending proposal to designate certain PFAS as hazardous substances under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act.
EPA Announces Enforcement Actions to Control Hydrofluorocarbon Imports
On March 2, 2023, the U.S. Environmental Protection Agency (EPA or Agency) announced several enforcement actions that support reducing the use of hydrofluorocarbons (HFCs). These actions include the following:
D.C. Circuit Upholds U.S. EPA’s 2021 Interstate Ozone Transport Rule
On March 3, 2023, the D.C. Circuit Court of Appeals rejected an industry challenge to the April 2021 Revised Cross-State Air Pollution Rule (CSAPR) Update Rule from the Environmental Protection Agency (EPA or Agency), which required power plants in 12 “upwind” states to reduce nitrogen oxide (NOx), an ozone precursor, emissions such that those states did not inhibit downwind states’ ability to comply with the 2008 Ozone National Ambient Air Quality Standard (NAAQS).
Companies With Environmental-Related Concerns Should Pay Attention to DOJ’s Voluntary Self-Disclosure Policy
On February 22, 2023, the U.S. Department of Justice (DOJ) announced the formalization of its voluntary self-disclosure policy for corporate criminal enforcement (VSD Policy) for all U.S. Attorney’s Offices (USAO). The VSD Policy details the circumstances under which a disclosure will qualify as a voluntary self-disclosure under the policy and, in turn, provides incentives to companies to make eligible self-disclosures. One such incentive — provided that the company makes an eligible self-disclosure, fully cooperates, and timely and appropriately remediates the criminal conduct — is that the USAO will not seek a guilty plea unless there are aggravating factors present. This is the first time DOJ has issued nationwide standards for voluntary self-disclosures for corporate criminal enforcement.
EPA Acts on Interstate Transport Requirements for Ozone Under State Implementation Plans
On Tuesday, January 31, EPA Administrator Michael Regan finalized EPA’s disapproval of State Implementation Plan (SIP) submissions for 19 states regarding the interstate transport of ozone under the 2015 eight-hour ozone national ambient air quality standards (NAAQS) of 70 parts per billion. Under the Clean Air Act, states were required to submit SIPs for the 2015 eight-hour ozone standard by October 1, 2018. The Clean Air Act required the SIPs to include “good neighbor” provisions, which prohibit emissions that either significantly contribute to nonattainment in a neighboring state or interfere with maintenance of the NAAQS in a neighboring state.
Biden Administration Publishes Final Rule Redefining “Waters of the United States”
On January 18, 2023, the Biden administration published its Final Rule revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Wetlands and waterways that meet the definition of WOTUS are protected by the CWA and subject to the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ jurisdiction. However, the term is not defined in the statute. As such, the federal agencies’ interpretation of WOTUS determines which waters are subject to the CWA permitting requirements.
EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice
On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.
EPA Publishes Extensive Guidance on Agency Authority to Address Cumulative Impacts
On January 11, 2023, the U.S. Environmental Protection Agency (EPA) issued guidance on the agency’s legal tools to address cumulative impacts. In “EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum,” (“Cumulative Impacts Guidance” or “Cumulative Impacts Addendum”), the agency set forth a host of legal authorities that it believes it and other stakeholders can use to address the cumulative effect of pollutants on overburdened communities. While EPA was careful to note that the guidance does not have any legal force, the document suggests numerous ways that EPA might seek use legal process to address cumulative impacts. Stakeholders need to be aware of this guidance because EPA’s broad interpretation of its authority to address cumulative impacts could affect the full range of agency action from permitting to enforcement to project siting to cleanup decisions and more.
EPA Amends All Appropriate Inquiries Rule
On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.
