Changes, proposed changes, and litigation surrounding environmental regulatory changes are dizzying of late. Below are some potentially important regulatory updates and updates to our updates.
Risk Management Plan
In our July 9th blog, we discussed changes to several environmental regulations. We also provided a heads up regarding environmental groups being very active in litigating environmental issues.
One of the regulatory updates we discussed was the proposal to stay the Obama Administration’s Risk Management Plan (RMP). The RMP rule requires facilities that use certain chemicals above threshold quantities to comply with additional audit, reporting, and notice requirements.
Recently, the Court of Appeals for the District of Columbia ruled that the proposed stay was “arbitrary and capricious…” As stated in an article on The Hill, this “…threw out the Trump administration’s attempt to delay a chemical plant safety regulation written by the Obama administration.”
What this recent court ruling may mean is that certain elements of the RMP rule could take effect this fall. So, if the changes to the RMP (from January 2016) affect your operations, you should plan on complying with those changes until further notice.
Waters of the United States (WOTUS)
WOTUS and the definition of what is (and what is not) considered a “water of the United States” is the crux of the Clean Water Act (CWA). This is an important definition as it is a significant factor with respect to who is (and is not) regulated under wetlands, NPDES, SPCC, et al. With respect to WOTUS, the USEPA and the US Army Corps of Engineers (USACE) have various jurisdictions under the CWA.
As you may know, the definition of a WOTUS has been debated for some time both in and out of court. Imbedded within this definition are the terms “navigable” and “nexus” (or “significant nexus”). Dragun’s senior hydrogeologist, Dr. Michael Sklash was involved in one of the more prominent cases (Rapanos) that went to the Supreme Court of the United States. The Rapanos decision restricted the definition of WOTUS, and for the most part, removed ditches and drainage channels that flow intermittently from jurisdiction under CWA. Mike focused on the “nexus” issue.
In 2015, the USEPA and the USACE signed the “Clean Water Rule” (commonly referred to as the WOTUS rule). The premise of this rule was that it provided “clarification” as to those waters that are included within their jurisdictions. It significantly expanded the definition of WOTUS by expanding the definition under “nexus” using terms such as “hydrologically connected.” If you think in terms of the hydrologic cycle, the 2015 WOTUS rule made it difficult to keep any drop of water out of the definition. This resulted in exaltations from environmental groups and exhalations from the regulated community.
Push Back on WOTUS
The regulated community pushed back on the science as well as the legality of the process of how the 2015 rule was put into effect. Read the executive summary of “The Politicization of the Waters of the United States Rulemaking” prepared by the Committee on Oversight and Government Reform, U.S. House, for a very interesting perspective.
The 2015 WOTUS rule was challenged in court by numerous States and has been held in abeyance by court decisions. Although not all States filed suit, the abeyance of the 2015 WOTUS rule covered the entire U.S. until a ruling is reached that would be consistent across the country. More recently, the Trump administration sought to repeal and replace the 2015 WOTUS rule through legislative process. In the interim, the previous definition took precedent.
Water of the US Current Status
On August 16, 2018, a U.S. District Court in South Carolina said that the Administration failed to seek public comment on the “Applicability Rule.” This ruling essentially meant that the 2015 WOTUS rule was in effect in 26 states. Therefore, at this moment, those 26 states have a “Federal Rule” that only applies to about half of the country. This is being appealed (an emergency appeal) by several groups.
Complicating the future of WOTUS further, there is another litigation being decided in Texas that could stay the 2015 WOTUS rule for all 50 states. This litigation has been waiting on the judge’s decision for about six months and there is heightened pressure for the decision in light of the South Carolina court decision that affects the 26 states.
With respect to WOTUS, there are a lot of moving parts, many of which we are not likely to know about as politicking takes place. I have never seen such a convoluted path in my 38 years in the environmental field as the path taken by the 2015 WOTUS rule.
Environmental To Dos
What can/should you do? A few thoughts.
Keep a pulse on what is happening in your state with respect to enforcement. In late August, we sent an environmental regulatory alert to our clients in Michigan. We shared that, by all appearance, the State was stepping up enforcement efforts. So make sure you are staying in touch with your industry groups.
Be proactive. In our recent bimonthly call with a group of “blue chip” senior environmental/legal professionals from across the US, they mentioned this more than once as the key to avoiding or at least hedging much bigger problems. In one case, though a company had an issue for which they took responsibility, their proactive efforts in building a relationship with the local stakeholders helped them avoid a much larger problem.
Finally, if you are not already doing so on a regular basis, consider a compliance assessment. Whether you use Dragun or you already have a relationship with an advisor, regular compliance assessments can be helpful in limiting your exposure to environmental enforcement actions.