Since the Clean Water Act was passed in 1972, there has been extensive debate over which waters may be regulated as “waters of the United States” under the Act. Over the years, various federal courts have reached differing conclusions on the question of whether discharges to groundwater can be considered discharges to waters of the United States. This issue recently came to a head in a 9th Circuit opinion. In response, the U.S. Environmental Protection Agency (EPA) is requesting comments on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water may be subject to regulation under the Clean Water Act. For farmers, manufacturers and anyone who conducts activities that release pollutants to groundwater, these actions will be affected by whether and how EPA clarifies its position regarding whether these discharges are subject to regulation. Read the full blog post from our Environmental attorneys on this issue at Husch Blackwell’s Emerging Energy Insights blog.
Attorney Megan Caldwell recently blogged about two recent agency enforcement memoranda impacting the enforcement of environmental violations. Both the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice (“DOJ”) have issued memos make changes in how agencies will focus on their roles in regards to enforcement. These changes may affect your company’s approach to compliance with certain agency guidance documents as well as your emphasis on relationships with state environmental agencies versus the EPA. You can read the full blog post on our Emerging Energy Insights blog.
The Office of the U.S. Trade Representative (USTR) has announced that anyone interested in having a product excluded from the safeguard measures imposed on imports of solar products must submit an application by March 16, 2018. Comments in response to exclusion requests must be filed by April 16, 2018. USTR set these deadlines and established the requirements for requesting product exclusions in a Federal Register notice published on February 14, 2018. This follows the President’s imposition of safeguard measures on imports of certain solar products on January 23, 2014. Under the safeguards, imports of cystalline silicon photovoltaic (CPSV) cells are subject to a tariff-rate quota and imports of other CSPV products are subject to an increased duty rate. For more information on this issue, please contact Jeffrey Neeley or Stephen Brophy.
Husch Blackwell’s Jeffrey Neeley authored an article, “Solar Panel Tariff Creates New Uncertainty” that appeared in Law360 this week. The article discusses in depth the proclamation signed by President Trump last week. From the article:
[T]he relief announced provides that the first 2.5 gigawatts of imported cells are excluded from the additional tariffs. The use of an exemption for the first 2.5 gigawatts makes the relief a form of a “tariff rate quota,” meaning that tariffs for cells only apply if imports rise above the quota amount of 2.5 gigawatts. This type of relief has been imposed in the past, including on certain steel products.
Read the full post on Law360.
On January 25, 2018, the U.S. Environmental Protection Agency (“EPA”) withdrew its 1995 “once in always in” guidance. Under that guidance, facilities classified as “major sources” of hazardous air pollutants (“HAP”) as of the “first compliance date” of a maximum achievable control technology (“MACT”) standard under Section 112 of the Clean Air Act are required to comply permanently with the MACT standard. Now, EPA’s current policy is that a major source that limits its potential to emit (“PTE”) to below major source thresholds can become an area source and will no longer be subject to the major source MACT.
The Clean Air Act defines “major source” as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” This definition expressly allows PTE to be calculated “considering controls,” and does not address the timing for when a source will be classified as a major source. As a result, EPA found that its “once in always in” policy “created an artificial time limit” contrary to the plain language of the Clean Air Act and must be withdrawn.
On December 6 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice indicating the approval of amendments to Proposition 65’s “clear and reasonable warnings” regulations. OEHHA issued these amendments to clarify and correct certain sections of the significant new regulations going into effect August 30, 2018 that will change how parties in the supply chain for consumer products must warn their customers.
Under the Proposition 65 regulations, a manufacturer, distributor, or retailer of a consumer product sold in California must label the product with a clear and reasonable warning if the product contains one or more chemicals identified by OEHHA as causing cancer, or birth defects or other reproductive harm. Parties in the chain of distribution who fail to provide such warnings may become targets of State enforcement, or private lawsuits for penalties, injunctive relief, and attorneys’ fees. OEHHA has provided “safe harbor” warning language to be used in labeling.
On January 22, 2018, the Office of the U.S. Trade Representative (“USTR”) announced that the Trump Administration is granting relief for the domestic solar panels and modules industry under section 201 of the Trade Act of 1974. This confirmed the fears of many consumers that there substantial additional duties would be imposed on those products. USTR announced that the relief would come in the form of a tariff increase of 30% in the first year, decreasing to 25% in year two, 20% in year three, and then to 15% in year four. On January 23, 2018, President Trump signed the Proclamation implementing the relief. The relief will go into effect on February 7, 2018. For additional information on the implications of this decision, you can read the full blog post on Husch Blackwell’s Emerging Energy Insights.
On Tuesday, January 23, 2018, President Trump signed the Presidential Proclamation to Facilitate Adjustment to Competition from Imports of Large Residential Washers, thereby announcing the President’s decision regarding the investigation of large residential washers (LRWs) under Section 201 of the Trade Act of 1974 (the LRW Safeguard Investigation). A copy of the Proclamation can be found here.
On December 4, 2017, the Wisconsin Department of Natural Resources (DNR) amended its National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5). The rule reduces the primary annual standard for PM2.5 from 15.0 to 12.0 micrograms per cubic meter (µg/m3). DNR was required to promulgate this rule to be consistent with the U.S. EPA NAAQS for PM2.5, published in January, 2013. The DNR rule is scheduled to be effective January 1, 2018, and will be submitted to the EPA as a revision to the Wisconsin state implementation plan. Continue Reading Wisconsin Tightens Air Quality Standards
Husch Blackwell’s Charlie Merrill authored an article, “It’s Up To EPA, Congress To Act On Commerce Reg Reforms” that appeared in Law360 this week. The article identifies recommendations for reform and actions needed for this reform to take place.
The U. S. Department of Commerce recently issued a report on the input it received from manufacturers on changes they would like to see in environmental permitting and regulations. The DOC report offered three overall recommendations for reducing regulatory burdens, as well as distilling recommendations from trade associations and individual manufacturing commenters into twelve “Priority Areas For Reform,” ten of them in the environmental area.
This article outlines environmental recommendations in the DOC report not previously analyzed in an earlier two-part Law360 article reporting on industry comments to the DOC, and discusses the processes by which the DOC’s priority recommendations for environmental regulations and permitting might be implemented.
Continue reading the article here.