On Tuesday, September 29, 2021, the U.S. Department of Interior (“DOI”) announced the revocation of the Trump Administration’s regulation that had limited the scope of the Migratory Bird Treaty Act (“MBTA”). The revocation rule will go into effect 60 days after publication in the Federal Register on October 4, 2021.
Report to Colorado Attorney General Details Failings of Agency Permitting Procedures
An earlier Spencer Fane blog post in May detailed the whistleblowers’ allegations that were contained in their letter to the EPA’s Office of the Inspector General (“OIG”).
The allegations caused the state’s Attorney General, Phil Weiser, to hire outside counsel to investigate. The Troutman Pepper report, released last week on September 22, concluded that fraud (or an intent to circumvent the law) on the part of the agency was not an issue; but, the permitting process needs improvement lest continuing “confusion” taints the process.
Companies in a wide variety of industries, including agriculture, manufacturing, mining, power generation, and utilities, that manage wastewater effluent in surface impoundments, lagoons, land application, septic systems, underground injection, or similar methods will want to evaluate the recent court decision in the County of Maui case on remand from the Supreme Court and how it could significantly impact wastewater permitting in the future. The case is the first federal district court to work through the “functional equivalent” analysis for federal jurisdiction over groundwater set forth by the U.S. Supreme Court in its April 2020 ruling involving the very same parties and operative facts.
OSHA’s Kansas City Area Office recently cited three employers for allegedly exposing workers and residents to asbestos hazards and failing to ensure safe removal of the known carcinogen during a flooring replacement project at a Monett, Missouri, nursing facility. Proposed penalties for the three employers totaled approximately $240,000.
Companies that store hazardous waste liquids with organics or other volatile and light vapors should ensure that the tanks, containers, and equipment used at those facilities satisfy the RCRA Organic Air Emission Standards in Subparts AA, BB, and CC under 40 CFR Parts 264 and 265. Over the past month, EPA has announced at least five separate penalty enforcement actions for air emission violations under the Subpart BB and Subpart CC standards. EPA promulgated the RCRA hazardous waste air emission standards to reduce the release of air emissions and organic vapors into the atmosphere from hazardous waste tanks, containers, equipment, and process vents, to prevent ozone precursors and other air toxics.
The Minnesota Court of Appeals ruled this week that a mine’s “synthetic minor” air emissions permit failed to address contentions attributed to its parent company’s public securities filing that some said suggested the mine might not comply with the permit’s output restrictions. The court ruled the Minnesota Pollution Control Agency (“MPCA”) must make additional factual findings to address those contentions and issue a revised decision to support its conclusion that PolyMet Mining Inc. (“PolyMet”) is anticipated to comply with the terms of its synthetic minor source permit.
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”). This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U). The text of the ETS, as submitted to the Office of the Federal Register, is available here. OSHA also launched a website with resources regarding the ETS.
Three air quality modeling staff ask the EPA Inspector General to investigate
In a letter to the U.S. Environmental Protection Agency (EPA) dated March 30, 2021, three self-styled “whistle blowers” who serve as air quality modelers working in the Air Pollution Control Division (APCD) of the Colorado Department of Public Health and Environment (CDPHE) asked EPA’s Inspector General, Sean W. O’Donnell, to open an investigation into policy decisions made by the agency. See letter here.
At Issue? Impacts on 10 million acres of public lands
On May 11, 2021, the Bureau of Land Management (BLM) announced it will take another look at its greater sage grouse conservation plans and the agency’s process related to the possible withdrawal of up to 10 million acres of habitat from mineral location and entry. See the BLM announcement here.
The agency’s long-delayed announcement comes after two federal court judges ordered the agency to re-think its plans: (1) a May 2020 federal Court’s decision in Montana vacating oil and gas lease sales on BLM lands in Wyoming and Montana [see opinion here], and (2) a February 2021 federal Court’s decision in Idaho that vacated the Trump administration’s decision to stop withdrawal of millions of acres of public lands for mineral development [see opinion here]. The focus of the courts’ opinions is BLM’s management plans that were designed to support sagebrush ecosystems on which sage grouse rely.
The Prospective Claims: States “Impermissibly” Impede the Export of Wyoming Coal and Force Closure of Coal-Fired Power Plants
Colorado (as only one example of many states) is working to reduce its reliance on coal and other fossil fuels for its electricity and transportation needs. Colorado plans to transition to 100 percent clean electricity generation by 2040 and rapidly expand the electrification of vehicles.