The EPA is seeking comments on a newly released, revised guidance document regarding the consideration of environmental justice (EJ) concerns in the rulemaking process. The guidance document updates a 2016 version and incorporates new scientific developments, other EPA guidance, and new priorities and policies.

The guidance document sets forth both analytical expectations for an EJ analysis, as well as technical methods and approaches that can be used to evaluate EJ concerns for a particular action. Under the guidance document, an EJ analysis should seek to answer the following:

  • Baseline: are there existing EJ concerns that are affected by the action for groups of concern?
  • Regulatory options: are these EJ concerns impacted by the regulatory action?
  • Mitigation or exacerbation of impacts: will EJ concerns be exacerbated, mitigated, or unchanged by the regulatory action compared to the baseline?

In analyzing these three questions, the guidance proposes consideration of a variety of methods and approaches, including both quantitative and qualitative data. EPA will consider the impacts of things like exposure to multiple stressors, cumulative exposures, and the susceptibility of a particular population to an adverse health effect (including potential lack of access to healthcare).

While the guidance is directed at EPA and considerations it must undertake when going through rulemaking, it will impact the manufacturing community in a variety of ways. First, a more detailed EJ analysis could delay implementation of a variety of environmental regulations or actions that will impact manufacturers. Second, it may result in the need for manufacturers to provide or generate information to support EPA in its analysis. Further, the continued focus on EJ, and this guidance in particular, will likely result in increased public access to the quantitative and qualitative data that is considered during an EJ analysis.

EPA will be hosting two webinars in December on the revised guidance. Any comments must be received by EPA on or before January 15, 2024.

In a recent report, the Environmental Protection Agency (EPA) Office of Inspector General (OIG) describes steps the EPA should take to increase air monitoring at marine ports and neighboring communities. While not agreeing to adopt all of the OIG’s recommendations, EPA has agreed to assess the air-monitoring network around ports and in near-port communities and to create a plan to enhance the monitoring network to address any gaps that might be identified.

The OIG report follows an unprecedented increase in cargo handled by U.S. ports, which has resulted in a decrease in air quality at several ports. The primary sources of emissions from port operations include ocean-going vessels (OGVs), cargo-handling equipment, and trucks. The OIG initiated an evaluation in 2022 to determine what steps, if any, EPA was taking to address the increase in air pollution.

EPA is authorized by the Clean Air Act (CAA) to regulate emissions from mobile sources, such as OGVs and trucks. The CAA also requires EPA to establish, update, and oversee attainment of National Ambient Air Quality Standards (NAAQS) for certain air pollutants, some of which are commonly present in ambient air at marine ports and in surrounding communities. To reduce emissions from ports, EPA to date has largely relied on voluntary programs to encourage shipping companies, port authorities, and community organizations to adopt cleaner practices. Since 2008, EPA’s Diesel Emissions Reduction Act (DERA) grant program has been the primary means of replacing and retrofitting older, dirtier diesel engines such as those found in various port equipment and associated vehicles. Going forward, EPA also will be distributing $3 billion from the Inflation Reduction Act (IRA) in grant funding to address air quality at ports.

While tools are in place to improve air quality at ports and in neighboring communities, OIG has identified a need for EPA to enhance its air quality monitoring. Among other things, OIG has recommended that EPA develop guidance for using “citizen science” (monitoring data generated by community groups). In addition, OIG has recommended that EPA set quantifiable performance measures for its Ports Initiative, including a plan for establishing emissions baselines. OIG’s push for increased air monitoring and performance measures is time-sensitive as EPA prepares to award IRA funding for planning, procurement, and installation of zero-emissions technology at ports. A summary of OIG’s findings and recommendations are included in its September 21, 2023 report, The EPA Needs to Address Increasing Air Pollution at Ports

In response to the OIG report, EPA has identified corrective actions it will take to evaluate its current air-monitoring network, although EPA has noted that monitoring should not be the sole focus of efforts to evaluate emissions and related air quality and has referred to other tools such as emissions inventories and air quality modeling. OIG has accepted EPA’s response with respect to OIG’s recommendations concerning monitoring, but not with respect to OIG’s recommendations concerning the establishment of performance standards. EPA will continue to work on resolving these issues.

With the coming influx of new IRA grant funding designed to reduce OGV, vehicle, and other marine port emissions and to improve air quality, ports can anticipate heightened focus on their vehicle operations and other emission sources.

Chevron deference is squarely in the U.S. Supreme Court’s crosshairs. The Court has had on its October docket an appeal in Loper Bright Enterprises v. Raimondo, which challenges the long-standing doctrine. First established by the Court in the 1984 Chevron v. NRDC case, the doctrine imposes a two-part test when courts determine whether to defer to an agency’s interpretation of a statute that it administers.  First, lower courts determine whether the statute clearly addresses the question at issue, in which case no deference is afforded to the agency’s interpretation.  If the statute is ambiguous, however, Chevron then instructs lower courts to defer to the agency’s reasonable construction of the statute.

Loper Bright involves the National Marine Fisheries’ interpretation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 to require commercial fishermen to fund at-sea monitoring programs and a challenge to the agency’s interpretation of the Act as it applies to the fishing companies. The case also squarely frames the question of whether the Court should overrule or clarify Chevron deference.  Because Justice Ketanji Brown Jackson heard arguments in Loper Bright while on the D.C. Circuit, the Court’s newest member recused herself from the appeal.

Likely in order to avoid the risk of a 4-4 tie in what could be a landmark ruling on Chevron deference, on October 13 the Court granted a petition to review Relentless Inc. v. Department of Commerce. The appeal, brought by Seafreeze Fleet LLC, involves a challenge to a similar rule under the National Oceanic and Atmospheric Administration requiring vessel operators to pay for federal observers on their ships. The Seafreeze appeal poses an identical question as to whether the Court should overrule or clarify Chevron.  The Court’s grant of certiorari will allow Justice Jackson to participate in arguments and weigh in on a case that could have substantial implications for administrative law.

A special briefing schedule will allow both cases to be heard in the January 2024 session.

In the Byzantine complexity of the Clean Air Act (CAA), EPA’s “once in, always in” policy regarding hazardous air pollutants (HAP) has been particularly confounding.  And now it’s back in play, through regulatory revisions proposed by EPA in late September.  

EPA’s proposal would prohibit a source from reducing its potential emissions of HAP to below “major source” thresholds (and thus avoiding more stringent regulation) unless the source’s post-reduction emissions of HAP are limited to the level that would have been allowed if the source had remained subject to the “major source” regulation.  In other words, a source may not reduce its potential HAP emissions enough to avoid “major source” controls, and then increase its actual emissions to a level higher than could be emitted with such controls.  In addition, the proposal would require the post-reduction emissions limit to be federally enforceable – that is, enforceable by EPA and by citizen groups under the Clean Air Act’s citizen suit provisions.  The proposed rule would also apply retroactively, back to January 25, 2018 (more on this date below), thus potentially pulling a previously-reclassified source back into “major source” status unless it obtains such a federally enforceable limit. 

Some background:  Under the CAA, a “major source” of HAP is defined as having the potential to emit at least (A) ten tons per year of any substance that the CAA or derivative EPA regulations identify as a HAP; (B) twenty-five tons per year of all HAP in total; or (C) any lower threshold that EPA decides is appropriate for a particular HAP.  A major source of HAP is subject to emission standards that require Maximum Achievable Control Technology (MACT).  By contrast, a non-major source of HAP is subject to standards that EPA to date has typically chosen to make less stringent than MACT (and for some source categories, has not yet adopted).

In effect, EPA’s proposed revisions would partially restore a much-criticized policy – known as “once in, always in” – that EPA announced in 1995 but withdrew in 2018.  The policy stated that if a source ever had the potential to emit HAP above the major source threshold after the first substantive compliance date of an applicable MACT standard, the source is “permanently subject” to the standard, even if the source later reduced its potential to emit HAP to below major source levels.  In other words:  once in, always in.  EPA claimed this policy was compelled by the “language and structure” of the CAA, and an underlying Congressional intent to limit or eliminate HAP emissions generally. 

On January 25, 2018, EPA withdrew the “once in, always in” policy after concluding from further review that it was not consistent with the CAA’s HAP provisions and exceeded EPA’s CAA authority.  Following the withdrawal, EPA promulgated regulations in 2020 (known as the “Major MACT to Area” or “MM2A” rule) to confirm that a source could indeed reclassify itself at any time to non-major HAP status (and for most source categories, thereby avoid MACT) if the source reduced its potential emissions of HAP to below the “major source” levels. 

The pending proposed revisions would add conditions to any such re-classification, by requiring a federally enforceable limit to prevent any subsequent emissions of HAP beyond previously-applicable MACT levels.  As in the original “once in, always in” policy, the preamble to the proposed revisions claims a basis in Congressional intent to limit or eliminate HAP emissions. Also as in the “once in, always in” policy, however, the preamble does not seem to address how the proposed conditions for MM2A reclassification square with the lack of any such conditions in the CAA’s definition of a “major source” of HAP, or with EPA’s available, but unused, CAA authority to adopt or tighten standards for non-major HAP sources if EPA thinks appropriate. 

EPA is taking public comments on the proposed revisions through November 13, 2023. 

The U.S. Environmental Protection Agency (EPA) released an advance notice of proposed rulemaking with a focus on modifying the treatment and handling of “empty” containers and drums under the Resource Conservation and Recovery Act (RCRA). The EPA is soliciting information and requesting comments “to assist in the potential development of non-regulatory and regulatory options that would ensure the proper management of used industrial containers that held hazardous chemicals or hazardous waste, up to and including the drum reconditioning process.”

The EPA is seeking comments on a variety of concepts, including:

  • Eliminating 40 CFR 261.17’s “empty” container exemption;
  • Modifying the requirements for a container to qualify as “empty”;
  • Expanding record-keeping, labeling, and certification requirements for generators;
  • Increasing requirements surrounding rinsate from drums; and 
  • Requiring all drum reconditions to obtain a full RCRA Subtitle C TSDF (Treatment, Storage, and Disposal Facility) permit or receive a variance.

Many of the regulatory changes being proposed in the advance notice would likely have a wide-ranging impact on manufacturers, recyclers, and even commercial operations, in addition to the more obviously impacted waste transporters and treatment, storage, and disposal operations.

The EPA set the comment deadline for September 25, 2023. Comments can be submitted at federalregister.gov.

On May 25, 2023, after more than 15 years of fighting, a couple contesting the Environmental Protection Agency’s assertion of jurisdiction over their residential lot as “waters of the United States” (WOTUS) under the Clean Water Act (CWA) scored a decisive victory in a U.S. Supreme Court decision, Sackett v. EPA. Chantell and Mike Sackett’s property, located near Priest Lake in Idaho, had wetland features but no direct contact with the lake or surface waters flowing into the lake. A road separates their lot from a larger wetland complex that flows into the lake. The U.S. Circuit Court of Appeals for the Ninth Circuit agreed that the EPA could impose CWA §404 permitting obligations on the Sackett’s filling of the wetlands on their land based on a site-specific determination that these and other area wetlands had a “significant nexus” to the chemical, physical, and biological integrity of Priest Lake as “traditional navigable waters.”

But the Supreme Court rejected this use of the “significant nexus” test. Following Justice Scalia’s opinion in the 2006 split decision Rapanos v. United States, the Sackett majority concluded that “navigable waters” are limited to only “relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” They held that “adjacent wetlands” regulated under the CWA “dredge and fill” permit program must have a “continuous surface connection” that makes them “indistinguishable” from such traditional navigable waters.

EPA and Army Corps of Engineers administer this CWA program, but have not yet issued any detailed responses. (Updates on the impact of Sackett will be available through the website links provided below.) There is certainly room for debate on the meaning of “indistinguishable” and “continuous surface connections” particularly when flooding or intermittent surface flows occur and where dunes, berms, levees, dams, ditches, culverts, drainage pipes, and other features either prevent or provide for connections between wetlands and traditional navigable waters. Some states and several environmental groups are also evaluating ways in which other programs might be expanded in the wake of Sackett. The decision is expected to curtail the circumstances when CWA §404 permitting applies to utilities, developers, farmers, and landowners conducting construction and filling activities and businesses harvesting timber or extracting other natural resources.

Attorney Melvin’s additional articles and presentations on water and wastewater topics appear in Environmental Law+ blog and other Robinson+Cole publications.

Below is an excerpt of an article published by the Connecticut Business and Industry Association (CBIA) on April 12, 2023.

OSHA is poised to revive a policy that would require employers to permit union officials to take part in agency inspections even if the union does not represent employees at the facility being inspected. 

OSHA previously maintained such a policy between 2013 and 2017. 

The policy arose out of a memo issued in response to a labor union’s inquiry. Known as the Fairfax Memo—a reference to the memo’s author—the policy was withdrawn in 2017 as the interpretation underpinning it faced legal challenges.

During the fall of 2022, OSHA issued a notice suggesting a return to the Fairfax Memo, but this time through promulgation of a regulation. 

The notice stated that a rule would be published in May of 2023 and that “[t]his rulemaking will clarify the right of workers … to specify … a union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer …” Read the article.

Last week EPA released its proposal for the first set of Maximum Contaminant Levels (MCLs) under the Clean Water Act for per- and polyfluoroalkyl substances (PFAS).  In contrast to non-enforceable health advisory levels introduced in 2016 and revised in 2022, MCLs constitute enforceable drinking water standards that will impact drinking water utilities and industry nationwide.  The proposal for enforceable drinking water standards marks the latest step in the evolution of PFAS from an emerging contaminant to a contaminant subject to enforceable regulations. 

The proposed rule sets standards for six PFAS compounds as follows:

*More information on how the Hazard Index will be calculated is available in an EPA fact sheet.

The proposed MCLs follow lifetime health advisory levels for PFOA, PFOS, GenX and PFBS issued by EPA in the summer of 2022.  The health advisory levels for PFOA and PFOS are 0.004 parts per trillion, which is a level that cannot yet be reliably detected in laboratories.  While the 4 ppt proposed MCL for PFOA and PFOS is low relative to the levels in place for other constituents, it is at least detectable using current technology.

In the preamble to the proposed rule, EPA indicated that no safe level for PFOA and PFOS has been identified.  Therefore, EPA is setting the non-enforceable, health-based Maximum Contaminant Level Goal (MCGL) at zero for both PFOA and PFOS.  Given that EPA requires the MCLs to be set “as close as feasible” to the MGCLs, the regulated community should be aware that EPA may move to further lower the limits for PFOA and PFOS as technology improves.   

We are also tracking a number of other PFAS-related developments, including that in August 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances.  A number of states (including California and Maine) have passed laws banning the use of PFAS in certain applications. 

On January 6, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication copy of a Proposed Rule, which will lower the annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5). PM2.5 refers to PM with a diameter of 2.5 microns or less, which is about 3-5 percent of the width of a human hair. 

Source: https://www.epa.gov/sites/default/files/2016-09/pm2.5_scale_graphic-color_2.jpg

Sources of PM2.5

Sources of PM2.5 are varied and complex. Some fine particulate is emitted directly, such as from fuel combustion by vehicles or power plants, or from certain industrial and agricultural activity. But a significant amount of fine particulate is also created when gasses emitted by such or other sources react in the atmosphere. The picture is further complicated by significant sources outside familiar regulatory targets, particularly forest fires, as well as contributions from wind erosion of soils and minerals and international transport.

Revised PM2.5 Standards:  Process and Proposal

Under the Clean Air Act, EPA is required to periodically review all NAAQSs and revise them as necessary to protect public health (primary standards) and welfare (secondary standards), based on available scientific evidence and technical information. As a practical matter, EPA has adopted two PM2.5 NAAQSs: one for short-term exposure (24 hours), and another for annual exposure. The current standards for PM2.5 were established in 2012 and affirmed in 2020. Thereafter, several parties petitioned EPA to reconsider the 2020 decision, and in June 2021 EPA commenced the re-evaluation process.

In evaluating whether to lower the annual standard for fine particulate matter, EPA relied heavily on certain technical studies: the December 2019 Integrated Science Assessment for Particulate Matter, its May 2022 Supplement, and policy assessments prepared by EPA staff, as well as advice from EPA’s Clean Air Scientific Advisory Committee (CASAC). According to the Integrated Science Assessment, fine particulate matter exposure at concentrations allowed by the current annual standard may lead to statistically significant adverse health effects, including respiratory and cardiovascular issues. The CASAC agreed with EPA staff policy assessments that this evidence calls into question the adequacy of the primary annual standard for fine particulate matter and recommended that the standard should be reduced accordingly.

The Proposed Rule would lower the primary annual standard for PM2.5 from its current level of 12 micrograms per cubic meter (12 μg/m3) to a level between 9 and 10 μg/m3. However, in the Proposed Rule EPA also requests public comment regarding levels from 8 to 11 μg/m3.

The Proposed Rule would retain all other existing particulate matter standards (the primary 24-hour PM2.5 standard and the identical secondary standard; the secondary annual PM2.5 standard; and the primary 24-hour coarse particulate matter (PM10) standard and its identical secondary standard). However, although no changes are proposed to the 24-hour PM2.5 primary and secondary standards, EPA will take comment on reducing them from the current 35 μg/m3 to as low as 25 μg/m3.

Concurrent with the proposed NAAQS changes, EPA also proposes to revise its Air Quality Index, which provides information about daily ambient levels for PM and other pollutants, to improve public communications about the risks from fine particulate matter exposure. EPA further proposes to modify the nationwide PM2.5 monitoring network to enhance protection of air quality in communities overburdened by air pollution.

Notably, in presenting the Proposed Rule, EPA emphasizes the “environmental justice” (EJ) aspects in terms of communities potentially harmed by current levels of PM2.5

Anticipated impact

EPA’s Regulatory Impact Analysis document accompanying the Proposed Rule projects where air quality would not attain the proposed tightened annual PM2.5 standard, with the extent of impact depending on whether the standard is lowered to 10 μg/m3, 9 μg/m3, or 8 μg/m3. Under any of these scenarios, the most impacted state is California, particularly the Central Valley and southern California. Beyond that, impacts are highly scattered across the lower 48 states, and include several major urban areas. 

Source:  https://www.epa.gov/system/files/documents/2023-01/naaqs-pm_ria_proposed_2022-12.pdf

Outlook for final revised standards

Following publication of the Proposed Rule in the Federal Register, EPA will accept public comment for 60 days. According to its January 6 press release, the agency plans to finalize the new standards later this year. Regardless of where the final standard lands, it is certain to be challenged in court.

In a 50-year game of ping-pong, the Biden administration marked the end of 2022 by taking its turn revising the definition of “waters of the United States,” or “WOTUS” for short. This term determines where Clean Water Act (CWA) permits are required for wetland dredging and filling and pollutant discharges, as well as other CWA jurisdictional limits. On December 30, 2022, the Environmental Protection Agency and Army Corps of Engineers (together, the Agencies) released a pre-publication version of the “Revised Definition” WOTUS rule and additional guidance materials; but the regulation does not take effect until 60 days after its official publication (still pending).

The Biden administration’s new rule identifies five categories of WOTUS, starting with less controversial waterbodies, such as large, actually-navigable rivers and lakes known as “traditional navigable waters” (TNW). From there, the rule defines additional categories and subcategories of WOTUS by applying both standards offered in the plurality and concurring opinions of the Supreme Court’s 2006 Rapanos v. U.S. decision. As outlined below, this approach includes not only features meeting Justice Scalia’s test (“relatively permanent, standing or continuously flowing” waters and wetlands with continuous surface connections to such waterbodies) but also those swept in under Justice Kennedy’s “significant nexus” trigger (“significantly affect[ing] the chemical, physical, and biological integrity” of TNW):

Para.WOTUS Category Regulatory Triggers
(a)(1)Traditional navigable waters, territorial seas, and interstate waters, forming the core (and perhaps least controversial) category of jurisdictional waters
(a)(2)Impoundments of WOTUS identified in other categories, except (a)(5) local waters
(a)(3)Tributaries of TNW and other core (a)(1) waters and (a)(2) impoundments, limited to such streams, ponds, impoundments, and other tributary waterbodies:
(i)that are “relatively permanent, standing or continuously flowing” (as most followers of Justice Scalia would tolerate); or
(ii)that significantly affect the chemical, physical, or biological integrity of any core (a)(1) waterbody
(a)(4)Adjacent wetlands in locations meeting federal “wetland” criteria (hydrologic and vegetation) and:
(i)adjacent” (“bordering, contiguous, or neighboring”) to TNW or other core (a)(1) waters;
(ii)possessing a “continuous surface connection” to any (a)(2) impoundment or “relatively permanent” (a)(3)(i) tributary; or
(iii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody and “adjacent” to any (a)(2) impoundments or (a)(3) tributaries
(a)(5)Additionalintrastate lakes and ponds, streams, or wetlands” where such local waters are either:
(i)relatively permanent … with a continuous surface connection” to any core (a)(1) waterbody or any “relatively permanent” (a)(3)(i) tributary; or
(ii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody

The Biden administration describes its new WOTUS definition as putting back into place the regulatory scheme in effect before the Obama and Trump administrations took turns revising this term. But, by expressly including “significant nexus” triggers, the new rule more closely resembles the Obama administration’s broad 2015 Clean Water Rule than the Trump administration’s more narrow 2020 Navigable Waters Protection Rule (NWPR). The new rule goes further by adding new criteria for determining when a water feature trips this trigger because it has a “material influence on the chemical, physical, or biological integrity of [TNW, territorial seas, or interstate waters],” either “alone or in combination with similarly situated waters in the region.” The Biden administration claims that the rule’s new terms and updated exceptions for ditches, construction site depressions, wastewater treatment ponds/lagoons, prior converted croplands, artificial ponds/irrigation areas, and similar features are supported by its extensive public outreach to agricultural, tribal, state, and other stakeholders. Countering longstanding criticisms that “significant nexus” considerations unduly burden farming, infrastructure, and other projects with complex and expensive study requirements, the Agencies also point to past guidance and additional materials now available to facilitate predictable WOTUS determinations.

The Biden administration may be positioning its Agencies to make future “Rule 2” WOTUS definition changes if the U.S. Supreme Court invalidates or cuts back the “significant nexus” trigger in a pending appeal brought by the Sackett family against EPA. In that case, EPA issued an order and a jurisdictional determination that applied the significant nexus test to prohibit further filling and home construction activities on the Sackett’s “soggy” property located 300 feet from Priest Lake, a TNW in Idaho. The wetlands on their 0.63 acre lot drain into the lake beneath the ground surface but, thanks to intervening roads and residences, have no surface connection to Priest Lake or any other TNW. The lot’s wetlands are part of a larger wetland resource that has been found to impact Priest Lake. The Ninth Circuit’s 2021 decision in Sackett affirmed summary judgment in favor of EPA based on the “significant nexus” test, rejecting the Sackett’s argument that Justice Scalia’s plurality opinion should control. The present appeal to the Supreme Court has been briefed and argued; a decision is expected later this year.

The Biden administration has also lobbed its new WOTUS definition into the Court’s deliberations on the Sackett case. In a December 30, 2022 letter, the Office of the Solicitor General provided a link to the now “final rule” and pointed to the Agencies’ preamble comments describing which “adjacent wetlands” are regulated as WOTUS. EPA’s announcement issued on the same day seems to speak to both the Court and the public by describing the new rule as “durable” and “grounded in the authority provided by Congress [and reflecting] existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.”

For now, the WOTUS ball is back in the hands of the Supreme Court. But, by forcing out its “durable” Phase 1 rule and reserving a place for potential Phase 2 rulemaking, the Biden administration is sending the Court and interested stakeholders a message that its Agencies are prepared to keep hitting back any narrow CWA interpretations sent their way in this game of WOTUS ping-pong, now entering into its sixth decade.

(*) For further discussion on the revised WOTUS rule and Sackett case, see the longer client alert. Attorney Melvin’s additional articles and presentations on water and wastewater topics appear in Environmental Law+ blog and other Robinson + Cole publications.