ENVIRONMENTAL
Adding Fuel to the Fires Calling for Permitting Reform
November 26, 2024
The U.S. Court of Appeals for the District of Columbia Circuit recently ruled that the Council on Environmental Quality (CEQ) lacks statutory authority to issue binding regulations under the National Environmental Policy Act (NEPA). CEQ's "regulations" have formed the cornerstone of NEPA interpretation and implementation almost since its enactment more than a half-century ago, and many of the familiar concepts to NEPA practitioners began as creatures of CEQ's earliest forays into promulgating NEPA regulations rather than from the original underlying statute.
While questions about CEQ's rulemaking authority have lingered in the background since NEPA's earliest days, no court has sought to tackle that thorny issue directly until now, leaving many to question why now, since neither party to the case raised this issue in briefing.
Source: Holland & Knight
Final Rule Alert: Third RCRA E-Manifest Rule
November 26, 2024
In effect January 22, 2025, large and small quantity generators will be required to create RCRAInfo Portal accounts to access completed manifests. Plus, other changes to the hazardous waste regulations.
Source: Lion
Waste Emissions Charge for Petroleum and Natural Gas Systems
November 19, 2024
EPA is finalizing a new regulation to implement the requirements of the Clean Air Act (CAA) as specified in the Methane Emissions Reduction Program of the Inflation Reduction Act. This program requires the EPA to impose and collect an annual charge on methane emissions that exceed specified waste emissions thresholds from an owner or operator of an applicable facility that reports more than 25,000 metric tons of carbon dioxide equivalent of greenhouse gases emitted per year pursuant to the petroleum and natural gas systems source category requirements of the Greenhouse Gas Reporting Rule (40 CFR 98, Subpart W). The rule implements calculation procedures, flexibilities, and exemptions related to the waste emissions charge (WEC) and establishes confidentiality determinations for data elements included in waste emissions charge filings. In addition, EPA is finalizing amendments to 40 CFR 98, Subpart A to be consistent with the WEC obligated party responsible for reporting under new 40 CFR 99.
Source: EPA
Carbon Markets Roundup
November 14, 2024
The past year was significant for carbon markets, both in the United States and globally. We have seen increasing action on credit quality, including with respect to standards and disclosure. More countries are beginning to implement and expand national compliance markets, while new voluntary carbon market (VCM) standards are shifting with the aim of refinement. Discourse on the use and means of improvement of these many credit mechanisms is on the rise.
Given the voluntary nature of most carbon markets, companies in this field have been left to use varying standards without much clarity. A shift in governments' willingness to set standards for carbon credit markets—including via green marketing regulation and disclosure requirements—demonstrates a trend towards increased oversight, and an increased focus on standards.
Source: Beveridge & Diamond PC
DC Circuit Sua Sponte Holds that CEQ Cannot Impose Binding NEPA Regulations
November 13, 2024
On November 12, 2024, the U.S. Court of Appeals for the D.C. Circuit ruled that the White House Council on Environmental Quality (CEQ)—the entity under the Executive Office of the President that has long overseen National Environmental Policy Act (NEPA) policy and implementation—has no statutory authority to promulgate binding regulations. Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. Nov. 12, 2024). The case originated with a challenge to two federal agencies’ plan to regulate tour flights over four national parks near San Francisco, California. The Plaintiffs claimed that the agencies erroneously relied on a NEPA categorical exclusion in lieu of preparing an environmental assessment or environmental impact statement. Both sides relied on CEQ’s NEPA regulations to support their positions. The Court agreed with the Plaintiffs that the agencies’ NEPA review was inadequate.
Source: Beveridge & Diamond PC
Hazmat Rule Updates for Highway, Rail, Vessel Proposed
November 11, 2024
PHMSA has proposed to amend the Hazardous Materials Regulations (HMR) by revising specific requirements related to rail, highway, and vessel transportation. The rule is intended to clarify the meaning and intention of the hazmat regulations by addressing several hazmat transportation issues, including:
Rail tank car design, use, and service/maintenance
Highway cargo tank specifications
Highway cargo tank requalification requirements
Required markings on tanks transporting distillate fuels
PHMSA will accept comments on the proposed rule until January 27, 2025.
Source: Lion
Key Environmental Law and Policy Issues to Watch in President Trump’s Second Administration
November 6, 2024
On November 5, President Donald Trump was elected President-elect for a second time. We anticipate that President Trump’s upcoming term will usher significant shifts in U.S. environmental and natural resource law and policy, as well as personnel at the U.S. Environmental Protection Agency (EPA), the Council on Environmental Quality (CEQ), the U.S. Department of the Interior (DOI), the U.S. Department of Justice (DOJ), and other federal agencies that establish and implement environmental regulation. The next six months will be especially impactful, as the Biden administration races to secure its legacy while the Trump administration assembles a ground team to dramatically de-regulate most, if not all, of the Biden administration’s primary policy initiatives. This Alert provides a high-level review of key environmental and natural resources issues to watch for in a second Trump administration.
Source: Beveridge & Diamond PC
EPA Clarifies E-Manifest Rules
November 5, 2024
The Environmental Protection Agency (EPA) or (the Agency) is making four minor corrections to a final rule that appeared in the Federal Register on July 26, 2024. The final rule related to regulatory changes to incorporate export manifests and other manifest-related reports (i.e., Discrepancy, Exception, and Unmanifested Waste Reports) into e-Manifest as well as other changes related to manifests, including for polychlorinated biphenyls under the Toxic Substances Control Act.
Source: EPA
From US EPA: Updated 2023 Toxics Release Inventory Data
November 1, 2024
EPA has updated preliminary 2023 Toxics Release Inventory (TRI) data originally released in July 2024. The TRI provides information to communities about chemicals released to air, water, and land.
The Emergency Planning and Community Right-to-Know Act (EPCRA) regulations require annual reporting from facilities in specific industry sectors that manufacture, import, process, or use a listed chemical in an amount that exceeds the given threshold for that chemical and activity (e.g., 25,000 lbs., 10,000 lbs. 100 lbs. etc.).
Source: Lion
Improvements to the National Primary Drinking Water Regulations for Lead and Copper November 1, 2024
The EPA is revising the National Primary Drinking Water Regulation (NPDWR) for lead and copper. The EPA is requiring public water systems to replace lead and certain galvanized service lines. In addition, the regulatory improvements include removing the lead trigger level, reducing the lead action level to 0.010 mg/L, strengthening tap sampling procedures, strengthening corrosion control treatment requirements, increasing public education and consumer awareness, and updating requirements for small water systems. These regulatory improvements aim to reduce exposure to lead in drinking water and to improve public health protections against lead exposure.
Source: EPA
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SOCIAL
IHMM Drafts Comments – OSHA – Proposed Rule to Protect Indoor and Outdoor Workers from Extreme Heat
November 4, 2024
The Occupational Safety and Health Administration (OSHA) has released a proposed rule that would protect approximately 36 million workers in indoor and outdoor work settings from extreme heat. The proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Among other things, the plan would require employers to evaluate heat risks and — when heat increases risks to workers — implement requirements for drinking water, rest breaks and control of indoor heat. It would also require a plan to protect new or returning workers unaccustomed to working in high heat conditions.
Source: OSHA
GOVERNANCE
IWA 48:2024 Framework for Implementing Environmental, Social and Governance (ESG) Principles
November 19, 2024
IWA 48:2024, Framework for implementing environmental, social and governance (ESG) principles, is available at no charge from ISO. ESG Implementation Principles (IWA 48) is a high-level structure and set of principles designed to guide organizations in implementing and embedding Environmental, Social, and Governance (ESG) practices within their organizational culture. This document supports the management of ESG performance and facilitates measurement and reporting under existing frameworks, enabling consistency, comparability, and reliability of ESG reporting and practices globally.
Source: ISO
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