Batteries play a fundamental role in energy storage, and currently nearly 99 million lead acid batteries are manufactured each year. This past Wednesday, U.S. Environmental Protection Agency (EPA) issued a proposed rule in the Federal Register relating to air emissions controls for lead acid battery manufacturers. Highlights of the proposed rule are more stringent lead emission limits for grid casting, paste mixing, and lead reclamation operations under both the National Emissions Standards for Hazardous Air Pollutants (NESHAP) (for new and existing sources) and new New Source Performance Standards (NSPS) for lead acid battery facilities that begin construction, reconstruction, or modification after February 23, 2022.
The “major questions” doctrine is likely to substantially affect environmental law. The “major questions” doctrine provides that for “major policy question[s] of great economic or political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority to both decide the major policy question and to regulate and enforce.” As we noted in our last post touching on the “major questions” doctrine, we expect that the “major questions” doctrine may be a focus of other cases on the docket this year including a pending case involving U.S. Environmental Protection Agency greenhouse gas regulations.
In a January 19, 2022, speech to the U.S. Conference of Mayors, Michael S. Regan confirmed that “[f]or this EPA, environmental justice is not an add-on or an afterthought ― it is a central driving factor in all that we do.” Since his appointment as U.S. Environmental Protection Agency (EPA) Administrator, Regan has repeatedly stressed that environmental justice will be a priority for EPA under his leadership. A press release issued a week ago outlined new concrete steps EPA will take to make good on that commitment. Continue Reading EPA Administrator Michael Regan Emphasizes the High Priority EPA Places on Environmental Justice Issues
The Biden Administration has indicated that the U.S Environmental Protection Agency (EPA) will include environmental justice issues among its priorities. EPA defines “environmental justice” as meaning fair treatment and meaningful involvement of people regardless of their race, color, national origin, or income regarding the development, implementation, and enforcement of environmental laws. EPA’s new emphasis on environmental justice means the regulated community should be on alert to identify how their operations potentially affect environmental justice issues. Continue Reading Ninth Circuit Decision Illustrates the Extent to Which “Justice” Issues Have Entered the Regulation Conversation
Property management companies (PMC) need to pay attention to a recent change in the U.S. Environmental Protection Agency’s (EPA) enforcement discretion concerning liability from renovations that could encounter lead-based paint. EPA has announced a change to its enforcement priorities for the Lead Renovation Repair and Paintings (RRP) Rule, which applies to renovations, repairs, or painting that could disturb lead-based paint in certain buildings constructed before 1978. Following the change, PMCs themselves, in addition to contractors hired, will be required to be trained by EPA-approved training providers and certify that they follow lead-safe work practices when conducting regulated renovations. Continue Reading EPA Affirms its Intention to Hold Property Management Companies Responsible for Lead-Based Paint Safety Requirements for Renovations
On January 11, 2022, the U.S. Environmental Protection Agency (EPA) announced that, effective immediately, the Agency’s review of applications for new pesticide active ingredients (AI) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) will uniformly incorporate analysis under the Endangered Species Act (ESA) with the intention of prioritizing protection for listed species as much as possible. The new policy applies to AI applications already submitted for consideration as well as incoming applications, and it does not immediately implicate any pending litigation regarding established AIs. Under the new policy, before registering any new conventional AI, the agency will evaluate the potential effects of the AI on federally listed threatened or endangered species and their designated critical habitats, and initiate ESA consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Services (the Services) as appropriate. Continue Reading EPA Announces Policy Aimed at Uniformly Incorporating Endangered Species Act Requirements into New Pesticide Registration Determinations
As our colleagues have noted, the U.S. Supreme Court’s two vaccine-mandate-related decisions impact employers and have significant public health implications.
Outside of the public health context, both decisions ― in cases styled National Fed. of Independent Businesses v. Occupational Safety and Health Administration (OSHA) and Biden v. Missouri ― provide significant guidance related to principles of administrative law, with which the regulated community will have to grapple in future policy challenges in federal court. Continue Reading Key Takeaways for the Regulated Community from the Supreme Court’s Vaccine Mandate Decisions
Demonstrating standing can be challenging for plaintiffs in environmental cases. The issues are addressed in court decisions with some regularity – see here and here. A recent Tenth Circuit decision in UPHE v. Diesel Power Gear, LLC, involving Clean Air Act (CAA) allegations against modifications to vehicles – in CAA parlance, “mobile source” – provides interesting guidance into what plaintiffs need to allege to have standing, at least in the Tenth Circuit. The take-away is that even though the impact of individual “defeat devices” on the environment might be small, courts may permit parties to bring claims about them in federal court. Continue Reading Tenth Circuit Decision Could Pave the Way for More Frequent Clean Air Act Enforcement
On January 5, EPA added 1-bromopropane (1-BP), which is also called n-propyl bromide, to the list of Hazardous Air Pollutants (HAP) under the federal Clean Air Act. 1-BP is used as a substitute for other HAPs in dry cleaning and other industries. This marks the first addition to the list since it was established as part of the 1990 Clean Air Act Amendments. The addition was prompted by petitions to list 1-BP by the Halogenated Solvents Industry Alliance and the New York State Department of Environmental Conservation.
EPA is expected to issue additional guidance and regulation under the National Emission Standards for Hazardous Air Pollutants (NESHAP) that will further govern the emission of the 1-BP; in the interim, companies that emit 1-BP need to consider how the addition of 1-BP to the list of HAPs will affect their permitting, emissions reporting, and regulatory compliance. Continue Reading EPA Expands the List of Clean Air Act Hazardous Air Pollutants
On December 7, 2021, the Illinois Environmental Protection Agency (IEPA) filed proposed amendments to Illinois’ groundwater quality standards with the Illinois Pollution Control Board (Board). The proposal includes Class I and Class II groundwater quality standards for six per- and polyfuoroalkyl substances (PFAS), including perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluorobutanesulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-DA). Illinois follows several states that are choosing to regulate PFAS constituents while federal regulation of the constituents is pending. Ubiquitous, PFAS can be found in a variety of consumer products, industrial processes, and fire-fighting foams, and can come to be located throughout the environment.