The Nickel Report

Last week, the US Environmental Protection Agency (EPA) announced the results of its enforcement and compliance efforts for the federal government’s 2021 fiscal year (FY2021)—October 2020 through September 2021. Prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), the report offers the first high-level look at the EPA’s enforcement of environmental laws under the Biden Administration. “Coming off a challenging few years,” said EPA’s Acting Assistant Administrator for OECA, Larry Starfield, “these 2021 results make clear that rigorous enforcement is back at EPA.” Key metrics in the report appear consistent with that message.

On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking.

Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA)—something that inconsistently occurred in the past. Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues. The additional focus on these issues will present opportunities, but also challenges, as it adds another step in the already time-consuming NEPA process.

Under a process known as Sunset Review, the Texas Commission on Environmental Quality (TCEQ) will be abolished in 2023 unless a bill is passed in the 88th Texas Legislative Session reauthorizing the agency. Sunset Review is performed by the Sunset Commission, and the process takes approximately two years. The TCEQ review process began last year with the preparation of the Self Evaluation Report (SER), completed by TCEQ in September of last year. The general public is encouraged to participate in the process. Public input is confidential and not passed on to the agency at this stage. Public comments should be provided by February 1, 2022 to be fully considered.

On December 29, the chemicals program at EPA closed out 2021 by proposing revisions to its risk determinations for the Cyclic Aliphatic Bromide Cluster (HBCD), a solvent used as a flame retardant and wetting agent which has not been manufactured in the United States in nearly five years. In doing so, the Biden EPA made good on its June 2021 promise to revisit risk determinations previously made during the Trump Administration in accordance with the Toxic Substances Control Act (TSCA). The draft “revisions” represent a significant shift from EPA’s prior approach to existing chemical risk evaluation and foreshadow increased regulatory and litigation risk for all companies—not just those whose operations may have historically involved HBCD.

On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.

On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule  renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process.  With this rule, the Corps reissued 40 existing NWPs and one new NWP.  These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.

On December 15, 2021, the Texas Commission on Environmental Quality (TCEQ) approved the publication of proposed changes to its compliance history rules to allow the agency to reclassify a site’s compliance history classification if an emergency incident results in significant impacts to the public and the environment.[1] In describing the background and reasons for the rulemaking, the agency noted the occurrence of a number of emergency incidents at industrial facilities in the state and resulting scrutiny of the facilities involved in those incidents. The proposed rulemaking is intended to “communicate to the regulated entity and the public that a review of such a site’s performance is underway, provide a more immediate and accurate measure of a site’s performance in light of such an event, and make compliance history a more effective tool to provide oversight and ensure regulatory consistency.”[2] If the rules are adopted as proposed, facilities involved in significant emergency incidents would face heightened regulatory scrutiny in agency decisions.

With the busy holiday shopping season underway, retailers should remain vigilant in their efforts to protect consumers and themselves from the risks of selling potentially unsafe, ineffective or misbranded products in violation of the U.S. Environmental Protection Agency (EPA’s) federal pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  As concerns with the spread of COVID-19 and new variants increase over the winter months, consumers are likely to stock up disinfectant products and devices like air purifiers and air filters marketed to reduce the transmission of COVID-19 and other microorganisms.  These products are tightly regulated under FIFRA, and retailers can unwittingly become entangled in regulatory enforcement actions for selling and distributing products that do not comply with EPA’s regulations.  FIFRA extends legal liability not only to the makers of violative products, but also retailers who sell them to consumers, whether or not the retailer was necessarily aware of the violation. In addition to EPA, state agencies also enforce state regulatory requirements applicable to these products.

This week, two senior U.S. Department of Justice (DOJ) Environment and Natural Resource Division (ENRD) officials used their remarks to the American Bar Association’s annual National Environmental Enforcement Conference to convey a clear message: environmental enforcement, and in particular criminal enforcement, is back. Companies and individuals should expect more robust investigations that draw on the expertise and jurisdiction of various federal agencies, while prosecutions will be driven by enhanced DOJ criminal enforcement policies.

The American Bar Association published an article, Navigating Environmental Justice Issues in Federal Permitting, which discusses Environmental Justice in federal permitting by Hunton Andrews Kurth attorneys Kerry McGrath, Andrew Turner, John Bobka, and Mayer Brown attorney Lauren Bachtel.

To continue reading this article, originally published by the American Bar Association, please visit the ABA website here or download a PDF version of the article here. 

Published in Natural Resources & Environment Volume 36, Number 2, Fall 2021. © 2021 by the American Bar ...