EPA Archives

Sep 28, 2023

Third Circuit Reverses EPA “Reactivation” Policy for PSD

A three-judge panel for the U.S. Court of Appeals for the Third Circuit has held that the Clean Air Act (“CAA”) bars the EPA from requiring facilities that are restarting after being shuttered to undergo to strict, Prevention of Significant Deterioration (“PSD”) permitting. In the Opinion, Port Hamilton Refining & Transportation LLP v. EPA, the three-judge panel vacated the EPA’s 2022 decision requiring a refinery to obtain a PSD permit when the shuttered facility reopened. According to the panel, the CAA “unambiguously limits the PSD Program’s application to newly constructed or modified facilities. The refinery is not new and has… Read more

Sep 20, 2023

EPA Eliminates “Emergency” Defenses to CAA Violations

On July 21, the EPA finalized a rule barring “affirmative defense” emission waivers for “emergency” scenarios under Clean Air Act (“CAA”) Title V Permits. The proposed rule would remove an enforcement defense that allowed facilities to avoid liability for permit violations occurring during qualified emergency circumstances such as unavoidable emission control device malfunctions, or emergency start-up or shutdowns. Under the previous waiver provisions, industry permit holders were shielded from civil liability during a malfunction or other emergency that resulted in excess releases of air pollution. The proposed rule will require states to amend their State Implementation Plans (“SIPs”) to eliminate… Read more

Aug 3, 2023

EPA Criticized for Slow Response to WOTUS Ruling

The EPA is facing heavy criticism from Republican lawmakers, states, and industry groups for its “slow response” to the Supreme Court’s Ruling in Sackett v. EPA. After the ruling, which set out parameters for defining “waters of the United States,” the Army Corps of Engineers has ceased issuing jurisdictional determinations, which effectively halts the issuance of new 404 Permits. Industry groups have urged the EPA to issue an emergency rule in keeping with the Sackett decision on an expedited basis in order to allow the Corps to resume issuance of jurisdictional determinations. The Biden administration, however, appears to be keeping… Read more

Apr 26, 2023

Lawsuit Challenges USFS CWA Permits for Aerial Firefighting

The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species. FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until… Read more

Mar 27, 2023

EPA Publishes Draft “Cumulative Risk” Assessment Procedures Under TSCA

The EPA has release a proposed guidance document for conducting cumulative risk assessments (“CRA”) under the Toxic Substances Control Act (“TSCA”). The guidance is designed to assist the EPA to characterize and quantify the combined risk to health and/or the environment from multiple chemical agents and/or stressors. Under the Biden Administration, consideration of cumulative risk is a top priority for the EPA in its efforts to address environmental justice concerns. The draft guidance notes that disadvantage communities often face multiple pollutants from multiple media which overlap with the adverse effects of poverty and other socioeconomic factors. However, it takes a… Read more

Jun 16, 2022

EPA Releases Drinking Water PFAS Standards

The EPA has released drinking water health advisory levels for four per-and polyfluoroalkyl substances (“PFAS”), including revised target levels for PFOA and PFOS. The updated advisory levels are based on new science that indicates that some negative health effects may occur with concentrations of PFOA or PFOS that are near zero. Accordingly, the new advisory levels are set at 0.004 parts per trillion for PFOA and 002 parts per trillion for PFOS, which are several orders of magnitude lower than levels set by the Obama EPA. While health advisory levels are not enforceable in their own right, many states use… Read more

May 19, 2022

First Circuit Reverses Bar on CWA Citizen Suits

The U.S. Court of Appeals for the First Circuit has overturned its bar on Clean Water Act (“CWA”) citizen suits seeking declaratory relief when a state is “diligently” prosecuting a violation. In the opinion, the Court agreed with environmentalists and the EPA that its prior opinion was at odds with the text and congressional intent of the CWA. In the language of the Court, “the limitations set forth in Section 309(g)(6)(A) bars only a citizen suit that seeks to apply civil penalty for an ongoing violation of the CWA and not a citizen suit for declaratory and prospective injunctive relief… Read more

Apr 25, 2022

Timber and Paper Industry Petition EPA to Ease Restrictions on Burning Paper Residuals

In December, 2021, representatives of the timber and paper industry petitioned the EPA to ease restrictions on the burning of railroad ties and paper residuals as fuel without triggering strict hazardous waste combustion emission requirements. The EPA previously denied the coalition’s petition to revise the Nonhazardous Secondary Material criteria for treated railroad ties and certain paper residuals. As outlined in its March 29 request for reconsideration, the issue is whether the railroad ties and paper residuals can be burned as “fuel” in boilers and avoid tougher emissions limits designated for incinerators. When a material is designated as fuel under the… Read more

Apr 7, 2022

EPA to Cease Accepting Expedited Corrections to TSCA Inventory

On February 24, the EPA announced that it will stop accepting streamlined requests to correct entries on the TSCA Inventory of Chemicals in Commerce as of April 26, 2022. Historically, the Agency has allowed corrections to chemical identities using the same forms and documentation used to add an existing chemical to the inventory. This practice greatly streamlined and expedited the ability of industries to correct mistakes made in initial filings. Under the EPA’s new policy; however, the Agency will require any changes to go through the same pre-manufacture notice (“PMN”) process required for completely new chemicals. The decision has already… Read more

Mar 16, 2022

Liquid Terminal Industry Seeks Superfund PFAS Waiver

The liquid terminal industry which provides the infrastructure, storage and transportation planning for bulk liquid products such as oil, gas, industrial chemicals and fertilizers, is petitioning the EPA to consider exemptions to superfund laws for PFAS chemicals in firefighting foam. ILTA which represents over 80 terminal companies is requesting that the EPA work collaboratively with the industry for research and development efforts which would give rise to clear guidance on disposal methods, while waiving superfund liability for releases of PFAS used for fire suppression. For more information, contact Phillip Hoover.