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On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.…

On December 7, 2021, the U.S. Environmental Protection Agency (“EPA”) released its proposed 2020, 2021, and 2022 Renewable Volume Obligations (“RVOs”). RVOs determine the amount of renewable fuel (typically, ethanol) certain fuel refiners and others involved in the transportation fuel supply chain (“Obligated Parties”) are required to blend into their own fuel production during a given year. Obligated Parties failing to meet their RVOs for any year must buy Renewable Identification Numbers (“RINs”) or other credits, or risk default under the Renewable Fuel Standard (“RFS”).…

Pursuant to the Renewable Fuel Standard (“RFS”), the U.S. Environmental Protection Agency (“U.S. EPA”) issues annual renewable volume obligations (“RVOs”), which set the minimum aggregate volume of renewable fuel that refiners must blend with transportation fuel for the following calendar year.

Refineries producing transportation fuel meet their RVOs by blending the required volume of renewable fuel into gasoline or diesel fuel or by acquiring credits (called renewable identification numbers, or “RINs”). The RFS permits “small” refineries – those producing fewer than 75,000 barrels of fuel per day – to claim an exemption by showing that meeting their RVOs would cause them “disproportionate economic hardship.”…

Senior Associate Megan McLean has published “Biden Administration Promises to Double Down on Environmental Justice” in Rock Products Magazine. 

In the article, Megan outlines President Biden’s stance on environmental justice, the actions the EPA is taking to address environmental justice, and what companies need to do to mitigate foreseeable risks.

Read the article here.

Recent Regulatory Steps

On January 14, 2021, on the eve of President Biden’s inauguration, EPA issued an advance notice of proposed rulemaking, seeking comment on whether PFOA and PFOS should be regulated under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). This will likely lead to the designation of PFOA and PFOS as “Hazardous Substances” under CERCLA and RCRA. Such a designation will likely lead to EPA and the state agencies taking more aggressive action to investigate and identify new sites where PFAS may be a concern and also to review the status of existing sites where PFAS may be a concern that was not addressed in previous investigations or response actions and to potentially pursue response actions at such sites.  At this moment though there is only the interim policy that EPA provided to assist in addressing PFOA and PFOS groundwater contamination. The comment period on this advance notice just closed and we anticipate a proposed rulemaking in the near future.…

D.C. Circuit Upholds USEPA Decision to Not Require Financial Assurance Under CERCLA for Hardrock Mining

We have previously blogged (in June 2019 and 2017) on a proposed rule released during the final days of the Obama Administration which required hardrock mines to provide financial assurance demonstrating they are able to fund the costs associated with the future cleanup of the mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal statute designed to address releases of hazardous substances and the cleanup of hazardous waste sites nationwide. In December 2017, the USEPA stated its intention not to issue the final rule, finding that there was no need for any CERCLA financial assurance mechanism for operating hardrock mines based on existing federal and state programs as well as modern mining practices. Several environmental organizations filed suit in the U.S. Court of Appeals for the D.C. Circuit, challenging the USEPA’s decision not to issue the rule.…

A client alert issued today by Husch Blackwell’s environmental practice group details a major reversal of Obama-era policy by the Trump Administration.  The EPA announced it will not issue final regulations under CERCLA Section 108(b) imposing financial responsibility requirements on the hardrock mining industry. Abandoning a December 1, 2016 proposed rule, the EPA emphasized that…

The month of August, 2017 has seen three distinct developments that may significantly impact management of “Coal Combustion Residuals,” or “CCR,” which include bottom ash, fly ash, boiler slag, and flue gas desulfurization materials generated from burning coal at steam‑powered electricity plants. Although one of these developments may provide a degree of regulatory relief, the other two may preserve or even strengthen existing regulatory requirements.…