Category Archives: Guidance

Waters of the United States: Definitely a Regulation, Not Guidance

Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated.  Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to […]

EPA’s Groundwater Remedy Completion Strategy: Making Cleanups More Efficient Or Just Increasing PRP Costs?

Last week, EPA released a draft Groundwater Remedy Completion Strategy.  The strategy is intended to provide: a recommended step-wise plan and decision making process for evaluating remedy operation, progress and attainment of [remedial action objectives] using an updated conceptual site model, performance metrics and data derived from site-specific remedy evaluations. I like to think that […]

Yes, Indeed, A Victory For Regulation Over Guidance

EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act.  It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance.  As I noted previously, […]

Little Ado About Very Much: EPA Reinterprets Its PCB Guidance

On Tuesday, EPA issued its “reinterpretation” of its understanding of what building wastes constitute “PCB bulk product waste” under TSCA regulations, as opposed to “PCB remediation waste.” Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste. […]

And Some Potential Developments on the Water Side As Well

Yesterday, I did an update on Clean Air Act developments. Today, it’s the Clean Water Act’s turn. According to the Daily Environment Report, EPA will meet its deadline of June 13, 2013 to promulgate a post-construction stormwater rule. I found it interesting that the story states that EPA has nearly completed its cost-benefit analysis for the rule – even though it […]

EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose

EPA recently released two guidance documents relevant to Superfund practitioners.  One establishes revised procedures regarding how EPA will manage negotiations with PRPs.  The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic. The RD/RA negotiation guidance has to be seen to be believed. It’s a document […]

FTC’s New Guidance Has Teeth to Go After Greenwashing

Companies who want to market their products as being good for the environment will need to back up their claims more carefully, in light of the Federal Trade Commission’s new environmental marketing guidelines, released this week. The “Guides for the Use of Environmental Marketing Claims,” or Green Guides, updated for the first time since 1998, […]

New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanos guidance. Greenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all. At an earlier point, I […]

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts. The […]

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging […]

MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text: MassDEP generally does not intend the guidance […]

Sauce For the Goose? Home Builders Lose a Standing Battle

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard. After EPA and the Army Corps of Engineers issued […]

Building Efficiency — Everyone Is In Favor, But How Do We Get There?

Yesterday, the Daily Environment Report noted the formation of the Coalition for Better Buildings, or C4BB, an alliance of environmental, business, and real estate interests intended to increase the incentives to make buildings more energy-efficient. Its members include real estate trade groups such as the Real Estate Roundtable and the Building Owners and Managers Association, as […]

Who’s Afraid of Cost-Benefit Analysis?

E&E Daily reported this week that Congressional Democrats are opposing the Regulatory Accountability Act of 2011. H.R. 3010 would codify a requirement for cost-benefit analysis of major regulations in the Administrative Procedures Act. According to the report, John Conyers, ranking member on the House Judiciary Committee stated that the RAA would amend the Administrative Procedure Act in […]

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already […]

GHG Protocol Finalizes Scope 3 and Product Life Cycle Methodology

The most popular suite of tools to measure and manage greenhouse gases just got a lot more complete — allowing companies to track the impact of their products from natural resources and raw materials, through manufacturing, use and disposal, and providing a detailed framework to measure companies’ “everything else” Scope 3 emissions.    The Greenhouse […]

Inspector General’s Evaluation of EPA’s Endangerment Finding: Form over Function?

As Greenwire reported, the Inspector General of the EPA recently released a report criticizing how the agency followed (and deviated from) procedures in publishing the Technical Support Document that underpinned its December 2009 Endangerment Finding.  The IG was instructed to conduct this review at the order of Senator Inhofe (R-OK), the ranking Republican on the Senate […]

EPA Issues Its Environmental Justice Plan: Words (Almost) Fail Me

Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to […]

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

The fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary […]

Almost-Final: Massachusetts’ Biomass Regulations

Late last week, the Massachusetts Department of Energy Resources (DOER) filed with the Joint Committee on Telecommunications, Utilities, and Energy of the state legislature proposed final amendments to the Renewable Portfolio Standard (RPS) regulations governing the eligibility of woody biomass facilities and fuels to qualify to earn renewable energy credits (RECs).  DOER originally issued a […]

EPA Issues New Rapanos Guidance: Perhaps the Agency Really Is Listening

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I […]

The Battle Against Guidance Continues

I’m beginning to feel like a broken record, but the drumbeat of the anti-guidance crowd is not letting up. Earlier this week, the Waters Advocacy Coalition, which is a group of farm and industry trade groups, sent a letter to EPA and the Army Corps of Engineers, requesting that EPA and the Corps withdraw their plan […]

More on Guidance v. Regulation: With Friends Like This,…

The issue of guidance v. regulation has been in the news a lot recently. Recently, the anti-guidance side got what some might consider unwelcome assistance from John Graham, who reviewed regulations in the Bush White House. Graham was quoted as saying that: The whole idea of guidance not being a rule — there has to be an […]

Climate Risks & Opportunities in SEC Filings

 A year has passed since the SEC issued an interpretive release describing the kinds of climate change related disclosures that the Commission believes should be reported by all publicly traded companies, but many questions still remain regarding how to comply.  With annual 10-K filings due at the end of this month, concrete examples of best […]

A Twofer: Indoor Air and Guidance v. Regulation

Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is […]

Muddling Through: Clean Water Act Edition

Last week, I discussed EPA’s efforts to “muddle through” on climate change in the absence of comprehensive legislation. This week, I think it’s the Clean Water Act’s turn. If there were any regulatory situation which required some serious muddling through at the moment, interpretation of the Supreme Court’s Rapanos decision almost is a match for the current […]

Deja Vu All Over Again: Time For Another Rant About Guidance

As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is […]