Winston’s Environmental Law Update

The first amendments to the National Environmental Policy Act (NEPA) in decades might materially narrow NEPA reviews and streamline federal permitting of oil, gas, and renewable energy projects, leasing on federal lands, and reviews for roads, bridges, and other infrastructure projects, including the extent to which federal agencies must consider greenhouse gas emissions said to impact climate change.

The U.S. Environmental Protection Agency (EPA) recently proposed three key actions to further regulate ethylene oxide (EtO) under the Clean Air Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s latest proposals include (1) stricter national emission standards for hazardous air pollutants (NESHAP) for commercial sterilization facilities, (2) new Clean Air Act rules for plants that make synthetic organic chemicals and plants that make a variety of polymers and resins, and (3) more stringent standards for workplaces handling EtO. We provide an overview of these proposed actions and what they may mean for your business.

The Biden Administration has started 2023 with a jammed pipeline of major regulatory actions relating to climate and other major environmental matters. For those interested in participating in the public comment processes, the clock is ticking. Here is a rundown of impending deadlines for public comment for some of the most significant rulemakings from the EPA and other federal agencies.

EPA is proposing to impose stringent new “Good Neighbor” regulations under the Clean Air Act. These changes are proposed to help downwind states meet the 2015 Ozone National Ambient Air Quality Standards (“NAAQS”). These strengthened controls on nitrogen oxide (“NO_x”) emissions will apply to power plants as well as other large industrial facilities located in 26 states. Beyond fossil fuel-fired power plants, EPA is proposing NO_x emissions limitations for facilities in the following industries: pipeline transportation of natural gas; cement and cement product manufacturing; iron and steel mills; ferroalloy manufacturing; glass and glass product manufacturing; chemical manufacturing; petroleum and coal products manufacturing; and pulp, paper, and paperboard mills.

Since 2015, the Clean Water Act’s definition of “waters of the United States” has often depended on what state you live in. After a district court decision in Arizona on September 3, 2021, the EPA and U.S. Army Corps of Engineers announced they are halting implementation of their 2020 Navigable Waters Protection Rule nationwide.

On June 28, 2021, EPA proposed a new reporting and recordkeeping rule for per- and polyfluoroalkyl substances (PFAS) pursuant to Section 8(a)(7) of the Toxic Substances Control Act (TSCA), as amended by the National Defense Authorization Act.

The chemical and health care industries know that more stringent EPA regulation of the manufacture and use of ethylene oxide (EtO) is coming.

The Biden Administration plans to revoke the Trump-era Migratory Bird Treaty Act (MBTA) Rule and return to interpreting the MBTA as prohibiting incidental take, not just purposeful take, of migratory birds.

On January 7, 2021, the U.S. Fish and Wildlife Service published a final rule in the Federal Register codifying the Trump Administration’s interpretation that the Migratory Bird Treaty Act’s (MBTA) prohibition on taking protected species only applies to purposeful take.

On December 22, 2020, the U.S. Environmental Protection Agency (EPA) announced the first update since 1991 to the Lead and Copper Rule. This update aims to further protect children and communities from exposure to lead in drinking water.

Key takeaway: On December 28, 2020, EPA finalized its first greenhouse gas (“GHG”) emission standards that apply to certain new commercial airplanes, including all large passenger jets. The standards are effective on or after January 1, 2028.

On September 23, 2020, California Governor Gavin Newsom issued Executive Order N-19-19, outlining a number of actions the state will take to combat climate change.

The D.C. Circuit has stayed the EPA’s rollback of methane emissions standards for the oil and gas industry.

On August 13, 2020 the U.S. Environmental Protection Agency (EPA) issued two final rules, completing the rollback of Obama-era methane emissions regulations in the New Source Performance Standards (NSPS) for the Oil and Gas Industry. Issued in response to the March 2017 Executive Order on Promoting Energy Independence and Economic Growth, the EPA’s new rules relax methane gas emissions requirements applicable to various segments of the oil and gas industry. Methane, the primary component of natural gas, is a greenhouse gas.

On July 15, 2020, the Council on Environmental Quality (CEQ) issued a Final Rule amending its regulations under the National Environmental Policy Act (NEPA). The update is a response to Executive Order 13807, in which President Trump directed the CEQ to investigate possible changes to NEPA that would modernize the regulations. Executive Order 13807 also established a goal of two years to prepare environmental impact statements for federal projects.

Under Section 109(d) of the Clean Air Act, the EPA is required to conduct a comprehensive review of the National Ambient Air Quality Standards (NAAQS) every five years and revise or retain these standards as appropriate. On July 13, 2020, the EPA released a pre-publication draft of its proposal to retain the 2015 ozone NAAQS without revision. These standards are set at 70 parts per billion (ppb) for both the primary (health-based) and secondary (welfare-based) standards. The proposal comes as Chicago and other areas of the country are experiencing air quality alerts due to high levels of ozone in the ambient air with hot, sunny, summer weather.

In response to three separate decisions to remand by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), the EPA has issued a pre-publication draft of its amendments to the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT). The proposed amendments revise 34 different emission limits for various subcategories of boilers and pollutants, 28 of which would become more stringent and six of which would become less stringent. Relying on the “co-benefits” of the rule in controlling ancillary emissions of particulate matter and sulfur dioxide, EPA estimates these amendments will cost the industry $21.5 million per year with estimated annual benefits of $95-$250 million. As we previously wrote, EPA has signaled its intent to move away from the practice of relying on co-benefits in rule development.

On April 22, 2020, EPA published an interim rule granting temporary reprieve to regulated sources from the quality-assurance monitoring and reporting requirements under 40 CFR Part 75 due to COVID-19-related interruptions.

On July 8, 2019, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register finalizing three discrete rulemaking actions. First, EPA repealed the Clean Power Plan (CPP) promulgated by the Obama Administration on the grounds that the CPP exceeded EPA’s rulemaking authority.