Category Archives: Guidance

Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?

Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment.  In Massachusetts, the Executive Office of Energy and Environmental Affairs has proposed a draft MEPA Climate Change Adaptation and Resiliency Policy.  The policy seems sufficiently important to warrant more than one post.  Today, I’ll look at EOEEA’s authority to promulgate an Adaptation Policy.  Tomorrow, I’ll look at some of the specifics.

Under the Adaptation Policy, proponents of projects required to prepare an Environmental Impact Report would have to assess the impact of climate change on the… More

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer.  The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP, DOT reasonably performed a qualitative analysis of PM concentrations based on a receptor five miles from the project area.

The regulations require the proponent to demonstrate that the project will not “increase the frequency or… More

MassDEP Releases Its Draft Vapor Intrusion Guidance

VI GraphicMassDEP has recently released for public comment draft Guidance on Vapor Intrusion.   The proposed guidance would replace MassDEP’s December 2011 Interim Final Vapor Intrusion Guidance, which saw minor revisions in the spring of 2013.  The guidance has undergone a substantial revision, largely to make changes that correspond to the recent regulatory reforms to the Massachusetts Contingency Plan.

The guidance provides MassDEP’s recommended technical and regulatory approaches to addressing the vapor intrusion pathway at sites contaminated with releases of oil and/or hazardous materials regulated under the MCP. The issue… More

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing of Clean Water Act permits. The Court also rejected challenges to its 2012 Final Guidance document regarding appropriate conditions on such permits.

The decision on the Enhanced Coordination Process seems rather obvious. As the Court noted:

this kind of inter-agency consultation and coordination is commonplace and often desirable. Indeed, restricting such consultation and coordination would raise significant constitutional concerns.

***

Indeed, one of… More

EPA’s GHG Rule: The Really Big Picture View

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.

What do we know about EPA regulation of GHG?

• The Supreme Court has told EPA that greenhouse gases are, collectively, a pollutant under the Clean Air Act. That’s a… More

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act.  After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation.  On March 25, EPA sent a proposed rule for publication in the Federal Register.  It’s only 370 pages.  Sounds like guidance to me.

Although one might have thought that defining waters… More

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 OMB to review.  On one hand, it has many of the hallmarks of an EPA proposed rule.  However, there are some aspects that do read somewhat oddly, particularly the level of informality in the text.  According to the Daily Environment Report on… More

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 I am skeptical, not cynical.  Having worked on this stuff for 25 years, including some specific Superfund sites for most of that time, I’m skeptical that this means anything other than increased sampling and analytical costs and increased oversight costs, as my clients and… More

The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit

Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements.  Well, in a decision issued on October 23, Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, asked himself the same question.  His answer was that EPA has no such authority.

In a theme recurring with greater and greater frequency… More

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, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary, it’s probably time to acknowledge that there is no quick and easy, so you… More

EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses

On Monday, EPA lost another battle in the war over guidance.  In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has, prior to discharge).  The Court concluded that both letters constituted promulgation by EPA of effluent limits under the Clean Water Act and that they constituted legislative, rather than… More

A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation, and thus does not save time or transaction costs.

Sometimes, I’m right.

Almost a year later,… More

When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States.  The case is Rose Acre Farms v. NC Department of Environment and Natural Resources.

I won’t steal Pat’s thunder and you need to read her post if only because I cannot compete with (and had enough willpower not to steal)… More

MassDEP Tightens TCE Indoor Air Regulation: The $64,000 Question? What About Closed Sites?

Last week, MassDEP released new guidance on how it is assessing exposures to TCE in light of EPA new assessment of TCE risks released in September 2011.  The biggest issue is that concerns about fetal exposure have caused MassDEP to tighten the imminent hazard threshold for indoor air exposures to 2 ug/m3.  That’s an order of magnitude reduction from the prior standard of 20 ug/m3.

MassDEP has apparently thus far taken the position that it is not planning on reopening closed sites based on the new IH criterion.  However, they are going to be under a lot of pressure… More

Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?

A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment.  Apparently, the current draft was sent to regional offices – but not distributed to the public – for review.  Someone at Inside EPA leaked it to Fox Rothschild and asked for comment.  Fox Rothschild attorneys then submitted a letter to EPA requesting a formal opportunity for public comment.

To me, the episode illustrates what I’ll humbly call Jaffe’s Iron… More

Little Ado About Very Much: EPA Reinterprets Its PCB Guidance

pcb_guidanceOn 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. Now the building material will also be considered PCB bulk product waste. Indeed, EPA has slightly expanded the reinterpretation from its draft proposal; it now allows the building substrate to be characterized as PCB bulk product… More

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 has not yet made a decision on the size threshold. Presumably, the cost-benefit analysis is being performed across a range of possible thresholds.

The same story also notes that EPA expects finally to release its long-awaited revised post-Rapanos guidance on CWA jurisdiction. I’m with… More

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 that seems reasonable on its face, but when you step back and take a big picture look, you have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a… More

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, discourage companies from using broad claims like “green,” “eco-friendly”, or “environmentally preferable” that are difficult, if not impossible, to substantiate. Although the guidelines are not formal rules, they do specify how FTC will enforce US marketing laws.

Instead, environmental claims should be clear,… More

EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance on Mountaintop Removal Permits Under the CWA

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making.

The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance “qualified as final agency action because … it is … being applied in a binding manner.”

Nothing in the intervening 18 months caused Judge Walton to alter his views. EPA… More

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 guidanceGreenwire 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 acknowledged that this might actually be an appropriate situation in which to use guidance, for one basic reason. The guidance is only temporary; EPA has already acknowledged the need to pursue rulemaking as the long-term solution.

That being said, however, I… More

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 first is what will happen to CWA enforcement. On that score, I actually largely share Justice Alito’s view:

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina­tion under the… More

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 appropriate flexibility in complying with NEPA. I’m not sold.

In fairness, CEQ has a tough task here. It’s trying to satisfy everyone, including NGOs and environmental justice advocates, as well as project proponents. As I noted yesterday in my post on regulatory reform in Massachusetts, sometimes… More

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 to be overly prescriptive. Use of such words as “shall,” “must,” or “require,” however, indicates that the text is referring to a specific regulatory and/or statutory requirement, rather than a suggested approach and/or optional measure. Use of the words “should” or “recommend” indicates… More

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 a determination that two reaches of the Santa Cruz River constitute “traditional navigable waters” under the Clean Water Act, the National Association of Home Builders sued. The complaint appears to have attached declarations referring to individuals who own property along tributaries of the two… More

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 well as some heavyweight companies, such as Vornado. It also includes environmental groups such as the NRDC and companies who will look to profit from investments in building efficiency, such as Siemens and Johnson Controls.  

The C4BB’s mission is to:

Propose policy solutions from… More

Who’s Afraid of Cost-Benefit Analysis?

Cost Benefit Analysis(1)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 ways that would effectively halt agency rulemaking and undermine public health and safety rules.

Excuse me?

The guts of the RAA would be to:

Require cost-benefit analysis for all rules expected to cost… More

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 expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v. Jackson, Judge Walton shot down EPA’s “Enhanced Coordination Process”, or ECP, for reviews of section 404 permit applications.

Although… More

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 Gas Protocol Initiative (a collaboration between the World Resources Institute and the World Business Council for Sustainable Development) finalized its two newest global greenhouse gas standards on October 4. The GHG Protocol are the most widely used suite of accounting tools for measuring,… More

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 Committee on Environment and Public Works.  The review, which cost nearly $300,000, examined only whether EPA followed its own procedures and those of the Office of Management and Budget (OMB), and did not analyze the validity of the scientific or technical information used… More

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 analyze the issue to be stunning.

I also still think that my simple analysis from last year is not too simplistic. Here’s the way EPA’s job is supposed to work:

Congress passes environmental protection laws for EPA to implement. Those statutes generally provide for… More

The Pudding Tastes OK, But It’s Not the Treat It Could Be: EPA Issues Its Final Regulatory Review Plan

When EPA issued its preliminary plan in May for review of its regulations, I said that the proof would be in the pudding. Well, EPA has now issued its final plan. My review? The pudding tastes ok, but it doesn’t taste as good and it’s not as filling as it could be.

My major complaint with the preliminary plan was its failure to target the single biggest area for reform – those areas where EPA still relies on command and control regulation. Obviously, statutes dictate EPA’s approach in many cases, but not all. There is much more friendly generic language on this… More

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

mountain_topThe 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 injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.

Judge Walton’s decision did not deter EPA, which finalized… More

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 draft of these regulations in September 2010, and made revisions after receiving written comments and holding 2 public hearings.  In addition to the revised regulations, DOER issued a regulatory package containing two sets of guidance in the forms of Excel spreadsheets, the More

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 am not normally a fan, this new version seems an appropriate use of guidance.

First, it is not a unilateral effort to expand agency jurisdiction. Instead, it responds to the Supreme Court Rapanos decision. Given the lack of a majority decision, Rapanos certainly left… More

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 to issue further guidance on the interpretation of “navigable waters” post-Rapanos. It’s not surprising that this group would oppose the guidance. What is most interesting – and persuasive – about the letter, though, is this quote from the draft guidance itself:

the agencies expect that… More

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 arrow shot right through the heart of that. [Congress should pass legislation] to make sure that things that look like a duck and quack like a duck are a duck.

Of course, I agree with John Graham about guidance. The only problem is that most… More

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 practices in disclosures could be very helpful.  Potentially useful is a new report by Ceres that examines the state of disclosures in FY 2009 SEC filings to identify specific examples of how well companies are disclosing information that is important to investors. 

More

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 probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question… More

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 climate mess. As most of my readers know, Rapanos was a 4-1-4 decision which left EPA, the Corps, developers and environmentalists fairly equally perplexed

Most stakeholders have assumed that Kennedy’s concurring opinion, requiring a “significant nexus” between wetlands and traditional navigable waters before those… More

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 not supposed to announce new rules – only clarifying interpretation of existing rules. However, we all know what a slippery slope that can be. Second, notwithstanding the purported flexibility of guidance, how often do regulators on the street – those actually using the guidance, rather than… More