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.
U.S. EPA Adds 12 Chemicals to Toxics Release Inventory
On November 30, 2022, the U.S. Environmental Protection Agency (EPA) finalized a rule that adds 12 chemicals to the list of chemicals subject to Toxics Release Inventory (TRI) reporting requirements.[1] Facilities that are covered by TRI and meet reporting requirements for these chemicals will now be required to report to EPA on quantities of these chemicals that are released into the environment or otherwise managed as waste. The first reports on these chemicals will be due to EPA July 1, 2024, for calendar year 2023 data.
Upcoming Decision From U.S. Supreme Court Could Further Restrain Authority of Administrative Law Judges
Two cases recently argued before the U.S. Supreme Court address the question of whether federal agencies have authority to mandate proceedings before administrative law judges (ALJs). The plaintiffs in these cases have challenged the constitutionality of ALJ proceedings and, depending on how broadly the resulting opinion is written, the Court’s decision could limit the authority of ALJs across the federal government including within the Environmental Protection Agency (EPA).
U.S. EPA Proposes to More Than Double Toxic Substances and Control Act Fees
On November 16, 2022, the U.S. Environmental Protection Agency (EPA) proposed to raise its current Toxic Substances and Control Act (TSCA) fees, some of which would be more than doubled. This supplemental notice of proposed rulemaking modifies EPA’s proposal from January 11, 2021, which then aimed to increase the TSCA fees largely for inflation adjustment. TSCA allows EPA to collect fees from manufacturers, including importers, for the agency’s activities under TSCA Sections 4, 5, 6, and 14. Under the TSCA, EPA is required to adjust the fees “as necessary” every three years. In 2018, EPA promulgated a fee rule in 40 CFR part 700, subpart C, and set the current fees pursuant to that rule.
U.S. EPA Office of Land and Emergency Management Publishes Environmental Justice Action Plan
On September 30, 2022, the Office of Land and Emergency Management within the U.S. Environmental Protection Agency (EPA or the Agency) published an action plan, “EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs” (EJ Action Plan). EPA describes the EJ Action Plan as “a key component” of its implementation of President Joe Biden’s Executive Orders 13985 and 14008 to promote environmental justice (EJ).