A flurry of asbestos-related activity in the last weeks of 2020 will require the United States Environmental Protection Agency (EPA) to devote significant regulatory attention to asbestos in 2021. The incoming Biden Administration will need to address these Toxic Substances Control Act (TSCA) developments, and the scope of that response will determine whether regulatory implications extend beyond asbestos to other chemical substances.
On December 18, 2020, the Texas Commission on Environmental Quality (TCEQ) published notice of its intent to issue a non-rule standard permit for Marine Loading Operations (MLO). [i] The 30 day comment period ends on January 22 and instructions for the submittal of written comments are provided in the notice. A telephonic public meeting will be held on January 21 at 10:00 a.m. Instructions for participation are provided in the notice. In addition, the standard permit section of the TCEQ website includes a background document and a copy of the permit. [ii]
On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity). 86 Fed. Reg. 1134 (January 7, 2021). The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA. If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors. Continue Reading USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry
The European Commission (EC)–the executive branch of the European Union (EU)–recently proposed a comprehensive regulatory framework for batteries (the proposal). The finalized proposal would replace the existing Battery Directive, which currently covers only the end-of-life stage of batteries. The proposal is the first action taken by the EC under its new Circular Economy Plan and is viewed as a necessary step towards meeting the European Green Deal’s goal of zero net greenhouse gas (GHG) emissions by 2050. The proposal will have significant implications for companies manufacturing and importing batteries (or products with batteries) in the EU and may influence the future policies of the incoming Biden administration. Continue Reading The EU Drive toward a Sustainable Battery Framework and Seeing Around the Corner in the US
A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.
On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:
For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. Continue Reading Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”
On November 27, 2020, the US Environmental Protection Agency (“EPA”) published notice that the Texas Commission on Environmental Quality (“TCEQ”) has applied to the US EPA for National Pollutant Discharge Elimination System (“NPDES”) program authorization for discharges of produced water, hydrostatic test water and gas plant effluent.  TCEQ’s application (“Application”) was filed in response to a bill passed during the last Texas legislative session that required TCEQ to submit to EPA no later than September 1, 2021, a request for NPDES permitting authority for discharges of produced water, hydrostatic test water and gas plant effluent associated with oil and gas activities currently under the jurisdiction of the Railroad Commission of Texas (RRC).  Under this legislation, state authority to regulate these discharges will transfer from the RRC to TCEQ upon EPA’s grant of NPDES permitting authority to TCEQ. Should EPA grant NPDES permitting authority to TCEQ for these discharges, a prospective permittee would generally only need to obtain a single TCEQ authorization (rather than an authorization from both the RRC and EPA).  Continue Reading TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review
The Commonwealth of Massachusetts is poised to outline its planned steps to achieve the goals of its climate change-focused policies. On December 7, 2020, the Massachusetts Executive Office for Energy and Environmental Affairs (“EOEEA”) hosted a webinar to discuss the development and pending release of the Massachusetts Decarbonization Roadmap to 2050 (the “Roadmap”), which EOEEA indicates it will publish this month. The Roadmap constitutes the plan of the Commonwealth to identify cost-effective and equitable pathways and strategies for Massachusetts to reach Net Zero emissions by 2050, and the priorities to achieve an on-pace interim goal by 2030. In addition to the development of the Roadmap, the Commonwealth is in the process of preparing the 2020 update to the Clean Energy and Climate Plan (“CECP”), which is mandated to receive updates every five years under the Global Warming Solutions Act (“GWSA”).
Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994. Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida. Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will “assume” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters, significantly altering the 404 permitting process in Florida. EPA’s decision has broader implications for the 404 program on a national scale, as other states, including Oregon and Minnesota, consider whether to pursue assumption.
On November 19, 2020, the Federal Energy Regulatory Commission (“Commission”) issued Opinion No. 569-B, its latest order addressing evaluations of whether a public utility’s return on equity (“ROE”) is just and reasonable under Section 206 of the Federal Power Act (“FPA”).  As described herein, the Commission largely reaffirmed the methodology established in its prior related opinions. See here.
On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.