Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection. Resolving the dispute by litigation poses challenges. Last month, the Commonwealth Court offered some guidance on some of these challenges in Delaware Riverkeeper Network v. Department of Environmental Protection, No. 525 M.D. 2017 (Pa. Commw. Ct. July 25, 2018), permitting citizen suit claims against the DEP to obtain a faster cleanup and a direct claim under the Environmental Rights Amendment.
At a nationally-televised news conference July 24, 2018, EPA Acting Administrator Andrew Wheeler announced the approval of biofuels derived from sorghum oil as “advanced” renewable fuels under the Clean Air Act’s Renewable Fuel Standard (RFS) program. See Renewable Fuel Standard Program: Grain Sorghum Oil Pathway (Sorghum Rule) (July 24, 2018, pre-publication version). Wheeler called the approval a win for the nation’s “sorghum farmers and biofuel producers alike.”
In late June, the New York State Department of Environmental Conservation (DEC) promulgated long-awaited final revisions to its regulations detailing the standards and procedures for New York’s “Little NEPA” environmental quality review statute, the State Environmental Quality Review Act (SEQRA). This modest reform effort, which began with stakeholder outreach in 2012, will now govern all environmental reviews, including Environmental Impact Statements and Environmental Assessments, conducted in New York State starting in 2019.
The final rule largely tracks with the rule proposed in early 2017 (addressed more fully in our prior blog post, available here), including the reduction of the threshold for Type I actions, the imposition of mandatory scoping procedures prior to the preparation of an environmental impact statements (EIS), and the creation of new limiting factors to facilitate a faster EIS process. The final rule also retains many of the added exemptions for green infrastructure, energy, and reuse of existing facilities. There were, however, several potentially significant changes that, unfortunately, narrowed the scope of the amendments.
Changes to Proposed Type II Additions
The greatest change to the regulations relates to the creation of new SEQRA exempt “Type II” projects. Type II actions are actions that the DEC has determined do not pose a risk of significant adverse environmental impacts, and therefore do not require further SEQRA review.
First, the final rule eliminated the proposed rule’s exemption for redevelopment projects on “previously disturbed sites” in municipal centers, which was aimed at encouraging “smart growth” projects by exempting them from SEQRA’s requirements. This type of in-fill development was eliminated due to perceived difficulty in statewide application of the definition of what constitutes municipal centers, and was determined by the DEC to be best addressed at the municipal level (other government agencies subject to SEQRA can adopt their own Type II lists, but rarely do so). The DEC also removed anaerobic digesters associated with sewage treatment plants from the Type II list due to concerns over the potential impact of such facilities in dense urban areas. Finally, the DEC eliminated the proposed Type II treatment of rule minor subdivisions as Type II. As a result, the DEC significantly cut back its prior attempt in the draft regulations to streamline SEQRA by enhancing the list of SEQRA-exempt activities. Those activities, like myriad other discretionary government actions, will be treated as “unlisted actions,” subject to an assessment to determine whether an EIS is required.
In addition, the final rule amended some of the language surrounding proposed Type II projects for energy generation, easing some of the restrictions on placement of solar panels on superfund, brownfield, landfill, wastewater treatment, and industrial sites, as well as on existing structures that are not listed or eligible to be listed as historic sites. The final rule also altered the size threshold for solar, switching from a generating capacity restriction of five megawatts to an area restriction of 25 acres. These changes, recognizing New York’s renewable energy goals, serve to increase solar energy availability and decrease barriers to further growth.
Requirement to Consider Late-Filed Comments on the Scope
The department also slightly altered the requirements of the scoping process in response to public comment, requiring a lead agency to consider and include late-submitted comments on the scope in an appendix to the draft EIS. [6 NYCRR 617.8(g) of the final rule]. This requirement applies only to potentially important or relevant information submitted after the comment period with a statement indicating: (i) the nature of the information that should be considered, (ii) why the information relates to a potential significant impact, and (iii) why the information was not identified during scoping and why it should be considered during the review. Upon receiving such late submitted comments, the agency is required either to incorporate the information if truly significant or to include the information as an appendix to the draft EIS. Thus, the final regulations water down another aim of the revision effort, providing certainty to applicants and project sponsors on what must be included in an EIS for it to be deemed a complete assessment of potential adverse impacts. The DEC’s revision attempts to thread the needle somewhat by limiting the requirement to consider late comments to the preparation of an appendix rather than requiring a full amendment of the draft EIS; thus, the proposed rule seeks to ensure all public input is disclosed, while allowing a project sponsor to complete the environmental review process without needing to continuously amend the document to account for an endless stream of late-filed comments.
The length of time required to finalize these new regulations—which were formally adopted by the DEC June 27, 2018, and will become effective January 1, 2019—is proof that changing New York’s environmental review statute is never an easy endeavor. The removal of a number of provisions that sought to streamline SEQRA review ensures that the process will continue to be lengthy and complex for applicants and project sponsors.
On July 18, 2018, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ordered a stay of a recent Environmental Protection Agency (EPA) action that would allow manufacturers to continue to produce trucks with engines that do not comply with the agency’s Clean Air Act caps. In so ruling, the D.C. Circuit expressly stated that the stay “should not be construed in any way as a ruling on the merits of that motion” and ordered the EPA to submit responsive briefs July 25.
The Supreme Court of Pennsylvania issued two decisions on June 1 relating to the operation of natural gas wells in Pennsylvania. This article focuses on one of those decisions: Gorsline v. Board of Supervisors of Fairfield Township, No. 67 MAP 2016 (Pa. June 1).
Buried within last December’s massive Tax Cuts and Jobs Act of 2017, Pub. L. No. 115–97, 131 Stat. 2054 (TCJA), is an obscure provision that may change the litigation and settlement calculus for companies facing environmental enforcement actions.
In two recent decisions, Hawai’i Wildlife Fund v. County of Maui and EQT Production v. Department of Environmental Protection, courts have considered the nuances of “water‐to-water theory” and what constitutes a single discharge. While these cases may seem particularly distinct, one decided in the U.S. Court of Appeals for the Ninth Circuit regarding discharges into the Pacific Ocean under the Clean Water Act and one decided before the Pennsylvania Supreme Court under the Clean Streams Law, both cases add new color to a long and unresolved discourse regarding what constitutes a single release, how penalties are calculated, and what actions or inactions may escalate such a calculation. In the wake of Maui County and EQT, we can expect further debates regarding interpretation and application of both state and federal water law.
Read more from the article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.
As part of its growing reinterpretation of Clean Air Act requirements, the U.S. Environmental Protection Agency (EPA) has issued a new guidance (Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program (March 13, 2018) (Guidance)) altering the agency’s policy on when preconstruction permits are required under the New Source Review (NSR) program for modifications and construction.
The NSR program requires facilities to obtain a permit before constructing a new major stationary source or undertaking major plant modifications if the changes are predicted to result in a “significant emissions increase.” Facilities that exceed the significance threshold are subject to rigorous operational requirements and are generally required to install costly pollution control devices.
Determining whether a project exceeds the threshold requires a two-step analysis. Prior to last week’s guidance, Step 1 required facility owners to estimate the emissions increases from the proposed project. If the increases met the threshold, then the owners were to undertake Step 2: an evaluation of whether the project would yield a significant net emissions increase, after consideration of other contemporaneous and creditable emissions increases and decreases across the facility.
Under the Guidance, a facility can consider contemporaneous emissions decreases in Step 1 in a process the EPA calls “project emissions accounting.” These decreases need not be enforceable or creditable for consideration in the new Step 1 analysis.
This marks a significant departure from prior practice and raises the possibility that sources may “seek to circumvent NSR by characterizing the proposed project in a way that would separate into multiple projects those activities that, by any reasonable standard, constitute a single project.” Guidance at 9. While admitting this possibility and suggesting that another guidance on project aggregation is forthcoming, the EPA states that it “does not interpret its NSR regulations as directing the agency to preclude a source from reasonably defining its proposed project broadly, to reflect multiple activities.”
While the guidance appears to be in line with the administration’s stated goals, many environmental groups predict that air pollution will increase in its wake.
In an unusual move for an agency where subordinate officers generally issue substantive legal directives like this one, Scott Pruitt, the EPA administrator, issued the Guidance himself – signaling the importance of NSR reform to this administration and potentially raising the stakes for anyone that might seek to change its terms via citizen suit or other means.
President Donald J. Trump and his administration have focused on the EPA during his time in office, particularly in regards to its funding, and its regulations. The president has taken several high-profile steps in addressing climate change, including pulling the United States out of the Paris climate accord and proposing the repeal of the Clean Power Plan. The Trump administration also reversed the decision on the Dakota Access Pipeline, allowing it to move forward. And last month, the Trump administration released its proposed budget for 2019, which includes significant cuts to EPA’s budget, and makes significant cuts to state grants.
Manufacturers, importers, and sellers of electronics are subject to a changing array of federal and state communications and environmental requirements governing the marketing and disposal of such devices. To help clients stay on top of these requirements, GT’s Debra McGuire Mercer and Bernadette Rappold hosted a webinar on March 7 entitled, “Marketing and Disposal of Electronics: Understanding FCC Rules Governing Radiofrequency Devices and e-Waste Regulations.”
Mercer began the session by outlining amended FCC regulations codified at 47 C.F.R. Parts 2 and 15. The amended regulations, which went into effect last November, govern radiofrequency devices, including most electronic goods. The new rules streamline the methods for obtaining FCC equipment authorizations by combining into one method two authorization methods that permit responsible parties to test certain types of devices (rather than have an FCC accredited lab test the devices). The amended rules also eliminate a FCC form that had been required in order to import electronic devices and increased the quantity of devices that can be imported without obtaining an equipment authorization for trade shows or personal use. In addition, the new rules provide guidance as to when required labels may be included on an electronic display, rather than permanently affixed to a device.
Companies re-evaluating their FCC compliance in light of the new Parts 2 and 15 rules may also want to review their compliance e-waste requirements, Rappold suggested. E-waste regulations are becoming increasingly relevant as U.S. consumers, on average, replace their cell phones every 18 months, their televisions every two years, and their computers every three years. While federal regulation of e-waste is limited, 25 states and the District of Columbia presently have requirements either mandating or encouraging recycling of electronic waste. Some states impose a duty on manufacturers to register, while other states place more of the burden on sellers or retailers. Still other states, including California, have declared e-waste “hazardous,” effectively forbidding its placement in ordinary landfills, and have imposed mandatory deposits to encourage end-users to recycle.
As the market for electronic goods continues to grow, continuing regulatory interest in the authorization and disposal of these devices is expected. GT will continue to monitor developments. Subscribe to our blog for updates.