Audit, Compliance and Risk Blog

On April 23, a six-member majority of the United States Supreme Court issued a decision that narrows the uncertainty about when a discharge of water pollutants to groundwater may require a Clean Water Act (CWA) permit (County of Maui v. Hawaii Wildlife Fund). The decision directly vacates the Ninth Circuit Court of Appeals decision it reviews, and effectively over-rules decisions by the Fourth and Sixth Circuits that differed with the Ninth Circuit but are also inconsistent with the Supreme Court’s new analysis. It also overturns guidance issued by the Environmental Protection Agency (EPA) in 2019 categorically excluding discharges from point sources to groundwater from regulation under the CWA National Pollutant Discharge Elimination System (NPDES) permit program; EPA's policy applied nationwide except in those three judicial circuits.

The 2016 Amendments to the Toxic Substances Control Act (TSCA; the “Frank R. Lautenberg Chemical Safety for the 21st Century Act”) assigned the Environmental Protection Agency (EPA) a variety of new responsibilities and powers to review and regulate chemicals in commerce in the United States. These changes include additional requirements to review chemicals already in use (I summarized this piece of the new TSCA here). Despite all the changes to EPA priorities since 2016 (i.e., during the Trump Administration), EPA has marched forward with these chemical reviews. These reviews include formal statutory requirements to identify separate lists of 20 “high priority” – i.e., potentially high risk – chemicals for accelerated reviews, and 20 “low priority” chemicals EPA considers not to need further review. I wrote about EPA’s 2019 proposals for these lists here.

On January 23, 2020 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) finalized revisions to narrow their joint regulatory definitions of “waters of the United States”, applying authority under the Clean Water Act (CWA). The agencies characterize this narrowing as an increase in certainty for stakeholders, accomplished by eliminating some of the site-specific discretion that the 2015 rules provided to permit writers.

This marks the latest step in a cycle of rulemakings that began during the Obama administration in 2015, when the same agencies adopted revisions to the same rules expanding their definitions in order to interpret and apply then-recent decisions by the US Supreme Court.

The federal Council on Environmental Quality (CEQ) has proposed to revise its regulations administering the National Environmental Policy Act (NEPA) of 1969. NEPA requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Government-wide guidance is provided by the White House’s CEQ, established by NEPA and appointed by the President. CEQ issues formal regulations that agencies must follow, and guidance documents that provide additional advice.  CEQ also reviews agencies’ NEPA implementation programs, and publishes annual national Environmental Quality Reports.

On February 10, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2021 (October 1, 2020 through September 30, 2021), entitled “A Budget for America’s Future.” The drastic changes in budgeting for environmental health and safety (EH&S) regulation are consistent with previous proposals from this administration. They have no chance of adoption, particularly given the Democrats’ control of the House of Representatives, but still represent a fair summary of the President’s continuing priorities.

Although a major focus of the Clean Air Act (CAA) is the definition, attainment and maintenance of national ambient air quality standards (NAAQSs), the statute doesn’t define the term “ambient air.” This gap leaves the Environmental Protection Agency (EPA) to develop regulatory and policy definitions that delimit the reach of CAA authority. Since 1971, EPA’s definition defines “ambient air” as “that portion of the atmosphere, external to buildings, to which the general public has access.” EPA also provides additional details in a series of policy documents, which have just been updated with a  memorandum from EPA Administrator Wheeler to expand the exclusions for onsite air.

On November 20, 2019, the Environmental Protection Agency (EPA) completed its latest review and revisions to the Accidental Release Prevention (ARP) program for toxic catastrophe prevention under the Clean Air Act (CAA). These changes complete the Trump Administration’s review and repeal of most changes enacted during the Obama Administration, returning ARP requirements to roughly the point they were at before 2016. The remainder of this note summarizes these changes.

The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) to define and then regulate “hazardous wastes.” RCRA provides EPA considerable discretion, and one way the agency applies that discretion is by separating hazardous wastes into categories that are subject to distinct waste management requirements. One basis for these categorizations is relative risk – since 1995, EPA has defined a limited set of lower-risk wastes as “universal wastes” subject to special rules intended to encourage recycling (40 CFR part 273).

For nearly 30 years, environmental regulation has included examples of market-like mechanisms, where overall pollution limits (“budgets”) are set and individual sources assigned trade-able “emission credits” that can be traded among sources as they negotiate the most efficient pathways to overall reduction necessary to meet the budget. Although proliferating “cap and trade” systems for greenhouse gases are probably the most widely known, other examples abound.

Since 1991, Safe Drinking Water Act’s (SDWA) Lead and Copper Rule (LCR) has required public water systems (PWSs) to take steps to protect their customers from hazardous levels of lead in drinking water. Even before the highly-publicized crisis in Flint, Michigan, the Environmental Protection Agency (EPA) was working to update and expand LCR’s protective measures. These efforts include a 2016 White Paper announcing the “urgent need” for revisions, describing key issues and possible revisions, and projecting a proposal to issue extensive LCR revisions during 2017. However, after President Trump assumed office, EPA’s priorities shifted and the agency delayed action (I summarized the existing LCR and wrote about EPA’s regulatory delay here). In November 2019, EPA proposed LCR changes, which I summarize below.