Category: Environmental

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Michigan Court of Appeals Strikes State PFAS Drinking Water Standards

On August 22, 2023, a split panel of the Michigan Court of Appeals held that the Department of Environment, Great Lakes, and Energy (EGLE) violated the Administrative Procedures Act (APA) by promulgating a new rule establishing drinking water standards for seven PFAS[1] compounds. The required regulatory impact statement (RIS) did not consider compliance costs associated with a change in cleanup standards that would automatically spring from adopting new drinking water standards.

The new rules became effective on August 3, 2020, but were promptly challenged by 3M Company. 3M claimed that EGLE had not fully accounted for the compliance costs associated with the rules, as required by the APA. While promulgated under Michigan’s safe drinking water law, Michigan’s general environmental cleanup law provides that a state drinking water criterion becomes the groundwater cleanup criterion if it is more stringent than a criterion established under the cleanup law.[2]  EGLE established groundwater cleanup criteria for two of the more well-studied PFAS compounds, PFOS and PFOA, under its cleanup law as a combined 70 parts per trillion (ppt) for drinking water. The new drinking water standards for these compounds would have lowered these criteria to 16 ppt and 8 ppt, respectively. Adopting the new drinking water standards would also establish cleanup standards for five other PFAS compounds.

In preparing the RIS, EGLE estimated the compliance costs associated with the operation of water supplies, including costs to sample for these seven PFAS compounds and to install and operate treatment systems to meet the standards in their drinking water supplies if necessary. Although recognizing that promulgation of these rules would also change the existing cleanup criteria for PFOS and PFOA, EGLE stated that it was not practical to determine the impact of that change. EGLE also did not estimate costs associated with cleanup criteria for the five other PFAS compounds, noting that these costs would already be reflected in the costs associated with the PFOS and PFOA criteria.

The Michigan Court of Appeals rejected EGLE’s arguments that (1) EGLE lacked the necessary information to estimate the cleanup costs, and (2) the Court should have deferred to EGLE’s determination that it could not estimate those costs. The Court held that the APA requires an agency to provide an estimate of the actual statewide compliance costs associated with adopting all new rules, and that difficulty in estimating those compliance costs was not a valid reason for failing to provide them. Therefore, EGLE’s failure to estimate the impact of the new drinking water rules on the costs of compliance with Michigan’s general cleanup statute was a failure to comply with its statutory obligations under the APA. The Court affirmed the underlying decision of the Court of Claims that had reached the same conclusion.

The trial court stayed the effectiveness of its decision pending the exhaustion of all appeals, so the drinking water rules remain in place while the State considers appealing to the Michigan Supreme Court. Even if this decision delays the adoption of the State’s new drinking water criteria and the establishment of cleanup standards for the five new PFAS compounds, any long-term effect on PFOS and PFOA-driven cleanups will likely be limited. EGLE has already established stringent groundwater/surface water interface (GSI) cleanup standards for these compounds of 11 ppt and 66 ppt, respectively,[3] which is the driver for many PFAS-impacted groundwater sites. EGLE is also aggressively using those standards, initially developed as discharge standards under Michigan’s water laws, to push for evaluation and remediation of stormwater discharges. Additionally, U.S. EPA has proposed federal safe drinking water standards for PFOS and PFOA at 4 ppt each, which, if adopted, would ultimately become the new drinking water and groundwater cleanup standards for PFOS and PFOA in Michigan. In the meantime, we can anticipate that EGLE will continue to identify and evaluate potential PFAS source areas throughout the State to prepare for the transition to more stringent cleanup levels in the near future.

For more information, please get in touch with one of our Energy & Sustainability or Environmental attorneys.

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About the Author:

Sharon Newlon is a Member and Environmental, Energy & Sustainability Practice Group Co-Chair in Dickinson Wright’s Detroit office. She can be reached at 313-223-3674 or snewlon@dickinsonwright.com and her firm bio can be accessed, here.

 

[1] PFAS refers to a group of per- and polyfluoroalkyl substances that have been widely used in firefighting foams, coatings, certain metalworking operations and numerous other commercial and consumer applications.

[2] See MCL 324.20120a(5)(a).

[3]  These are GSI standards for groundwater discharging to a drinking water source.  For discharges to a non-drinking water source, the criteria are slightly less strict at 12 ppt for PFOS and 170 ppt for PFOA.

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Ohio Supreme Court Unanimously Affirms Siting Board Certificate for New Wind Farm

Emerson Creek project in Huron and Erie Counties Now Expected to Move to Construction 

On July 27, 2023, the Supreme Court of Ohio, in a 7-0 decision, affirmed the Ohio Power Siting Board (“Board”)’s decision to issue a certificate for environmental compatibility and public need (“Certificate”) to construct the Emerson Creek Wind Farm, effectively authorizing Firelands Wind LLC (“Firelands”) to proceed to construct the 297-megawatt wind-generation project in Huron and Erie counties.[1] In a unanimous decision authored by Justice Pat DeWine, the Court found the Board did not act unlawfully or unreasonably when evaluating the wind farm’s application and issuing a certificate to Firelands Wind.[2]

The Court rejected all of the arguments raised by project opponents, a small group of nearby residents, and the Black Swamp Bird Observatory (“Black Swamp”). They had contended that the Board failed to determine: the project’s probable environmental impact under R.C. 4906.10(A)(2), whether the project represents the minimum adverse environmental impact R.C. 4906.10(A)(3), and whether the facility will serve the public interest, convenience, or necessity under violated R.C. 4906.10(A)(6).[3]  Project opponents alleged that the project could disrupt the area’s water supply, create excessive noise and “shadow flicker” for residents near the wind farm, and harm bald eagles and migrating birds.[4]  They also claimed that the Board improperly delegated its duties to staff and other government agencies, failed to follow administrative rules, and should have required additional testing before granting the certificate.[5] We briefly summarize key aspects of the decision below.

Standard of Review Clarified

Before evaluating arguments from the residents and Black Swamp, Justice DeWine clarified how the Court’s statutorily mandated standard of review only allows the Court to reverse, modify, or vacate the Board’s order if the Board’s conduct is either “unlawful or unreasonable.”[6]

The decision explains that the law limits the Court’s review of what qualifies as unlawful to the review of legal questions, such as whether the Board correctly interpreted a statute. It further states the Court performs this type of review de novo (i.e., without consideration for the decision of an agency or lower court) and how the court is “never required to defer to an agency’s interpretation of the law.”[7]

When reviewing what is unreasonable, the opinion explains: “The agency’s exercise of its implementation authority must fall within the zone of permissible statutory construction.”[8] As such, if the statute gives an agency a degree of discretion, which is the case for the Board when determining whether to issue certificates, the court should:

“Examine the reasonableness of an agency’s decision about such things as whether a facility represents the “minimum adverse environmental impact,” or whether it will serve the “public interest,” by looking to whether the agency’s decision falls within that zone.”[9] (Citations Omitted).

Applying this standard, the opinion rejects each of the propositions of law raised by the residents and Black Swamp.

  1. Avian Impacts

Migratory Birds:

The residents and Black Swamp argued that Firelands failed to properly determine the impact the project would have on migrating birds, particularly “passerines.”[10] The residents and Black Swamp claim that without such a study, the Board could not determine “[t]he nature of the probable environmental impact.”

The Court rejected this argument, concluding that the record contained sufficient probative evidence for the Board to determine the nature of the probable environmental impact to passerines[11]:

Firelands conducted numerous site-specific studies, including surveys relating to migrating passerines, in accordance with the ODNR protocol and the USFWS guidelines. The board also reviewed hundreds of bird studies from existing wind farms. Firelands’ witness, Good, explained why Firelands did not conduct nighttime radar studies for this project: ODNR has mapped areas of Ohio that are high-risk for nocturnal migrating passerines, and the wind farm here does not fall within such an area. As the residents and Black Swamp’s own witness, Shieldcastle, acknowledged, ODNR only recommends that wind developers conduct nighttime radar monitoring for high-risk project areas. [12]

Bald Eagles:

The residents and Black Swamp contended that because the project will impact bald eagles, the Board failed to determine that the facility represents the minimum adverse environmental impact.[13] Firelands committed to (1) developing and implementing, prior to turbine construction, an “eagle conservation plan” in accordance with USFWS guidance for wind farms; and (2) apply for an “eagle take permit” from USFWS before the facility becomes operational.[14] An eagle-take permit authorizes unintentional eagle death resulting from an otherwise lawful activity.

The Court explains that the question before the Board is whether the facility represents “the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations,” R.C. 4906.10(A)(3) and does not question the reasonableness of the Board’s determination. The Court concluded:

Firelands’ application represented that the project’s anticipated short- and long-term operational impacts on wildlife were expected to be minor. The application described ways in which Firelands had designed the facility to minimize or mitigate bird mortality, including siting turbines so as “to avoid bald eagle nests and areas of concentrated eagle use.” And the stipulation ensured that the wind farm would be built and operated in accordance with USFWS guidelines for protecting bald eagles. We cannot say that the board’s determination that the facility represents the minimum adverse environmental impact was unreasonable.[15]

  1. Economic Impact

The residents and Black Swamp claim that Firelands’ economic impact study was inadequate because it failed to account for potential negative economic impacts. The Court disagreed and explained the applicant met the applicable rule:

The administrative code provision did not require Firelands to specifically quantify potential losses to tourism, farmers, or other energy providers. And nothing prevented the residents and Black Swamp from submitting evidence of such potential losses. The rule required only that Firelands provide an estimate of the economic impact on local commercial and industrial activities, which it did. We find nothing unlawful about the board’s interpretation of the rule and nothing unreasonable about its determination that the project “will serve the public interest, convenience, and necessity,” R.C. 4906.10(A)(6). [16]

  1. Shadow Flicker

The residents argued that the Board failed to require Firelands to meet the shadow-flicker standard set forth in the Ohio Administrative Code.[17] The Board determined that the project would not cause adverse shadow-flicker impacts, based on (1) a requirement in the stipulation that Firelands submit a final study 30 days prior to construction showing that the shadow-flicker impacts will not exceed 30 hours per year at any nonparticipating receptor, and (2) Firelands’ ability to employ mitigating measures to maintain shadow flicker within the permissible limit.[18] The residents contended that because Firelands’ study did not show compliance with the administrative-rule shadow-flicker standard, the Board should not have approved the project.

The residents argued that allowing Firelands to submit a post-certification study violates their right to participate in the review process and divests the board of its nondelegable duty under R.C. 4906.10(A) to make required findings. [19] The Court disagreed, stating the applicable administrative rule requires only that an applicant design the facility “to avoid unreasonable adverse shadow flicker effect” and that “the facility * * * be operated so that shadow flicker levels do not exceed thirty hours per year at any” nonparticipating receptor. (Emphasis added).”[20] Thus, the Court concluded the Board acted lawfully when it conditioned its approval on Firelands’ submission of a study showing that the shadow-flicker requirements would be met.

  1. Sound

The residents argued the sound assessment was unlawful and failed to comply with Ohio Adm.Code 4906-4-09(F)(2), which establishes the maximum increase in nighttime average sound levels for areas surrounding the project. The residents contended the sound assessment did not comply with the rule since two sound monitors (out of nine) were installed just outside of the project area and were not representative of the sound level in the project area

The Court disagreed. After interpreting Ohio Adm.Code 4906-4-09(F)(2) and pointing out the rule does not specify how to calculate nighttime average sound levels, the Court found the Board did not act unlawfully since the rule did not require the Board to adopt a specific methodology for performing sound assessments.[21]

  1. Evaluation of Impact on Water Supplies

The residents argued that Board erred by failing to require Firelands to conduct a hydrogeological study at each turbine site rather than the geotechnical survey provided in support of the application. The Court, looking to the language of the administrative rule and the geotechnical report provided in the application determined that the residents failed to show that the Board violated its obligations to determine the nature of the probable environmental impact of the project and that the facility represents the minimum adverse environmental impact under R.C. 4906.10(A)(2) and (3).

Dickinson Wright attorneys Christine M.T. Pirik, Matt McDonnell, Terrence O’Donnell, and Jon Secrest represented Firelands Wind through the siting and litigation phases of the project. Jon delivered oral argument at the Ohio Supreme Court for the firm’s client.

For more information, please contact the following attorneys:

 

[1] In re Application of Firelands Wind, L.L.C, Slip Opinion No. 2023-Ohio-2555; Justice Patrick R. DeWine authored the opinion with Justices Sharon L. Kennedy, Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, Jennifer Brunner, and Joseph T. Deters concurring. Firelands Wind was also supported by amicus briefs from the Ohio Environmental Council and the Ohio Chamber of Commerce.
[2] Id at ¶ 3.
[3] Id at ¶ 9
[4]  Id at ¶ 2.
[5] Id at ¶ 2.
[6] Id at ¶ 11.
[7] Id. at ¶ 13; Quoting TWISM Ents, L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677.
[8] Id. at ¶ 15.
[9] Id.
[10] Passerines are a wide variety of small birds, mostly songbirds. See Id at ¶ 47.
[11] Id. at ¶ 52.
[12] Id. at ¶ 52.
[13] Id. at ¶ 59.
[14] Id. at ¶ 60.
[15] Id. at 68.
[16] Id. at 58.
[17] “Shadow flicker” refers to the moving shadows that a wind turbine casts on a building when the turbine is between the sun and the structure.
[18] Id. at 42.
[19] Id. at 48.
[20] Id. at 33.
[21] Id. at ¶ 37.

 

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U.S. EPA Adopts ASTM 2021 Phase I Standard for Parties Seeking New Owner/Operator Liability Defenses Under CERCLA

On December 15, 2022, U.S. EPA issued its final rule adopting the ASTM E1527-21 standard for Phase I environmental site assessments as meeting the All Appropriate Inquiries (AAI) requirement to qualify for new owner and operator defenses against liability under CERCLA.[1]  The rule becomes effective February 13, 2023.  U.S. EPA is sunsetting the use of the prior ASTM E1527-13 standard one year after the new rule goes into effect.  State programs adopting innocent purchaser and/or bona fide prospective purchaser defenses may need to evaluate how the new rule affects their programs.

U.S. EPA had initially proposed adopting the 2021 Phase I standard on March 14, 2022, under a direct final rule that would have allowed compliance with either the 2021 or 2013 standard to meet the AAI requirements.  However, many adverse comments were received, including those suggesting that the dual standards would create confusion, so U.S. EPA withdrew it as a final rule on May 2, 2022.

One motivation for U.S. EPA’s adoption of the updated standard appears to be its reference to emerging contaminants.  The standard states that consideration of emerging contaminants may be included in a Phase I assessment at the user’s request,[2] particularly in states identifying those contaminants as hazardous substances under state law.  This provision is significant in the case of per- and polyfluoroalkyl substances (PFAS), where many states have progressed faster than U.S. EPA to recognize PFAS as hazardous substances.  It also enables the Phase I standard to be flexible in reacting to new contaminants identified in the future.

In addition to identifying emerging contaminants as potential business environmental risks or non-scope considerations, the 2021 standard includes more stringent requirements for the review of title work and historical information sources.  In our blog post, 2021 Revision of the ASTM Phase I Environmental Site Assessment Standard Approved, we summarized other key revisions in the 2021 Phase I standard.

Since the release of the ASTM standard and U.S. EPA’s proposed rule, many parties have been requesting, and consultants have been offering, Phase I assessments that meet the requirements of both standards.  Despite initial concerns, the new standard does not appear to have profoundly affected Phase I timing and pricing.  However, it may be premature to assess the impact prior to its exclusive application.

[1]See https://www.federalregister.gov/documents/2022/12/15/2022-27044/standards-and-practices-for-all-appropriate-inquiries

[2] The User is the party for whom the Phase I assessment is being performed, often the prospective owner or operator.

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U.S. EPA Proposed Listing of PFOA and PFOS: The Effects and Costs of Forever Chemicals

On September 6, 2022, the U.S EPA’s long-awaited proposed rule to list perfluorooctanoic acid (PFOA) and perluoroocanesulfonic acid (PFOS) as CERCLA hazardous substances was published in the Federal Register (Proposed Rule).[1]  This triggers a 60-day public notice and comment period. As the first compounds ever proposed for hazardous substance listing under Section 102(a) of CERCLA, and as the first two of potentially thousands of related “forever chemicals” to be considered by U.S. EPA, it is appropriate to evaluate the roads this element of U.S. EPA’s PFAS Strategic Roadmap may be leading us down. Whether due to the increase in social media or the ubiquity of PFAS in household products, PFAS has captured the general public’s attention in a manner rarely seen for CERCLA substances.

Historic Listing

While Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) authorizes the U.S. Environmental Protection Agency (U.S. EPA) to promulgate regulations designating compounds as “hazardous substances,” U.S. EPA has never done so until now. However, PFOA and PFOS exposure has been linked to alleged effects on the immune system, cardiovascular system, human development, and cancer at extremely low levels. Human epidemiology studies resulted in U.S. EPA’s release of interim updated drinking water health advisories in June 2022 of 0.004 parts per trillion (ppt) for PFOA and 0.02 ppt for PFOS, replacing the prior 70 ppt levels established in 2016 with levels below current detection limits. PFOA and PFOS are ubiquitous compounds, historically used not only in firefighting foams and industrial applications, but also in a wide variety of consumer products to inhibit the effects of water, grease, and stains. These compounds were useful, in part, because they are resistant to breaking down. They have been found in air, water, soils, domestic and wild animals, and in a high percentage of the U.S. population.[2]  Therefore, U.S. EPA has determined that their release into the environment “may present substantial danger to the public health or welfare or the environment.”  CERCLA Section 102(a).

What Would the Listing Trigger?

The default reportable quantity for release reporting under Section 102(b) of CERCLA is one pound within a 24-hour reporting period, and the proposed rule confirms that a one-pound reportable quantity will apply to releases of PFOA and PFOS absent a new rulemaking. Though the principal manufacturers of PFOA and PFOS phased out their production in the early 2000s, the rule may trigger reporting obligations for industries where PFOA and PFOS remain present in materials previously manufactured. The proposed rule includes a non-exhaustive list of 21 industries which it anticipates will be potentially affected by this listing, including textile mills, paper mills, landfills, and wastewater treatment plants.[3]

Perhaps more important than tracking new releases, the listing is anticipated to substantially increase U.S. EPA’s ability to respond to historical releases of PFOA and PFOS. U.S. EPA will be able to require potentially responsible parties to address PFOA or PFOS that poses an imminent and substantial endangerment. U.S EPA and private parties will be able to seek cost recovery for addressing PFOA and PFOS impacts. Additionally, the listing will trigger notifications and assurances of the completion of all necessary remedial action in conjunction with the transfer of federally-owned property if PFOA or PFOS was stored, released, or disposed of at the property.[4] CERCLA Section 120(h). DOT will also be required to list these substances as DOT hazardous materials.

U.S. EPA will likely include PFAS in its five-year reviews of historical CERCLA sites in addition to newer sites, and the listing of PFOA and PFOS may provide U.S. EPA with the ability to reopen existing CERCLA settlements. It is not yet clear what impact the listings may have on statutes of limitations periods triggered by past settlements with U.S. EPA. Still, if U.S. EPA identifies PFOA or PFOS as a basis for reopener, that should allow participating parties to argue that the settlements did not resolve their CERCLA liabilities, such that they may pursue contribution and cost recovery claims. Certainly, the regulated community can expect that these listings will lead to an increase in CERCLA administrative and civil actions, potentially to rival the late 1980’s and early 1990’s.

Does Cost Matter?

On August 12, 2022, the Office of Management and Budget’s (OMB’s) approval of the Proposed Rule’s included a determination that this proposed rulemaking is an economically significant action, requiring U.S. EPA to conduct a regulatory impact analysis and to include consideration of the Proposed Rule’s potential direct and indirect costs and benefits before it can take effect. In the Proposed Rule, U.S. EPA takes the position that because cost was not designated as a part of the standard for determining whether to list a hazardous substance pursuant to Section 102(a), it is neither a required nor permissible factor in determining whether PFOA and PFOS should be listed. Instead, the Proposed Rule suggests that cost considerations can be determined in evaluating appropriate response actions.[5]  Moreover, U.S. EPA noted that the only automatic private party obligation flowing from the listing was the obligation to report releases, estimated at an annual cost of $370,000.[6]  The OMB’s determination indicates that the Proposed Rule is anticipated to impose costs of $100 million or more annually. U.S. EPA has prepared an economic analysis of the potential costs and benefits, which will be posted in the docket for this action, and U.S. EPA is seeking comments on its interpretation of the need for and manner of considering such costs.[7]

Any Exit Ramps?

CERCLA offers few exemptions from liability for the release of hazardous substances, but some existing exemptions may be particularly interesting in the context of the PFAS listings and their impact on historical discharges. These include exemptions for federally permitted releases, such as discharges pursuant to water and air permits,[8] and the exemption for normal fertilizer application.[9] Owners and operators of landfills and wastewater treatment works are lobbying for further exemptions from CERCLA liability for PFAS on the basis that they merely receive PFAS in wastes from others, and controls are best placed on those generating PFAS-containing waste and wastewater.  Otherwise the costs of cleanup will be placed on the public, in opposition to the “polluter pays” philosophy of CERCLA. When passed by the House in July 2021, H.R. 2467, which would require the U.S. EPA Administrator to list PFOA and PFOS as hazardous substances and evaluate all other PFAS for listing, did not include such exemptions. However, the bill has yet to be taken up by the Senate, so these industries remain hopeful. Whether its interest in PFAS may enhance or soften the general public’s reaction to the anticipated costs of addressing it has yet to be determined.

In the meantime, the PFAS Strategic Roadmap continues to drive on, expanding the regulation of PFAS across all environmental programs. U.S. EPA is:

  • Pursuing national primary drinking water standards for PFOA and PFOS;
  • Finalizing a risk assessment for PFOA and PFOS in biosolids;
  • Regulating a broad range of PFAS under other agency programs;[10]
  • Considering further CERCLA listings; and
  • Determining how PFAS should be incorporated into environmental justice efforts.

Clearly, the regulation of these “forever chemicals” is here to stay.

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About the Author:

Sharon Newlon is a Member and Environmental, Energy & Sustainability Practice Group Co-Chair in Dickinson Wright’s Detroit office. She can be reached at 313-223-3674 or snewlon@dickinsonwright.com and her firm bio can be accessed, here.

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California Proposes Further Changes to Proposition 65 Short-Form Warnings

On December 13, 2021, the California Office of Environmental Health Hazard Assessment (“OEHHA”) issued another notice in its efforts to amend the short-form warning regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65.

Beginning in 2018, companies could comply with Proposition 65 by using the short-form warning.  While OEHHA originally intended this warning to be used for small products that could not accommodate the long-form warning, the Proposition 65 regulations did not prohibit the short-form warning on larger products.  Many companies use the short-form warning option because, unlike the long-form warning, the short-form warning does not require the identification of any chemicals, and this allows companies to use the same warning across all product lines.  For companies with thousands of different products, it can be cost-prohibitive to try to grapple with developing and applying unique labels for each product and chemical combination.

Earlier this year, OEHHA became concerned that the short-form warning was being overused on products of all sizes and was not providing any specific chemical information to consumers.  Thus, on January 8, 2021, OEHHA proposed to amend the short-form warning regulations to require the identification of at least one chemical, and to limit its use to products with five square inches or less of label space and where the total size of the package could not accommodate the full-length warning.  OEHHA received over one hundred comments to its proposed amendments.  In response to comments, OEHHA issued another proposed amendment to the short-form warning regulations.  While OEHHA retained the requirement from the January proposal to identify at least one chemical in the warning, it modified the proposed regulation to, among other things, increase the maximum surface area of the label available for consumer information from five square inches to 12 square inches, continue to allow use of the short-form warning on the internet or in catalogs where the short-form warning is used on the product label, and provide additional warning language options.

Further, new signal word options were added in several sections to allow businesses to make clear that the Proposition 65 warning is being given pursuant to California law.  Currently, the warning must include the word “WARNING.”  Under the proposal, companies also would have the option of using “CA WARNING” or “CALIFORNIA WARNING.”  Because most companies use the same labels for products sold in California and elsewhere, this reference to California may explain the presence of the warning for non-California consumers that are unfamiliar with Proposition 65.

As proposed, the amendments would become operative one year after the effective date.  Thus, manufacturers would have one year after the effective date to revise their Proposition 65 warnings.  Additionally, there is an unlimited sell-through period for products manufactured up to the operative date.  Alternatively, businesses may use the amended warning prior to the operative date.

OEHHA is accepting comments on the proposed amendments until Friday, January 14, 2022.  If you would like to submit comments, or if you have any questions regarding Proposition 65, please contact AnnMarie Sanford.

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About the Author

AnnMarie Sanford, a Member in Dickinson Wright’s Troy office, is primarily engaged in environmental remediation, regulatory issues and counseling clients regarding compliance with federal and state chemical regulations. She can be reached at 248-205-3246 or asanford@dickinsonwright.com, and her biography can be accessed here.

 

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The PFAS Roadmap: Pathway to Environmental Justice

In October 2021, the United States Environmental Protection Agency (USEPA) issued its PFAS Roadmap, establishing a comprehensive, three-year plan to address the potential risks posed by this large class of manmade compounds, often referred to as “forever chemicals.” The Roadmap takes a “whole of Agency” approach to address the risks of PFAS, outlining a wide range of measures to be taken under the authority of multiple statutes, including the Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Toxic Substances Control Act (TSCA), Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In outlining the measures to be taken, the Roadmap also evinces a commitment to promoting and implementing environmental justice (E.J.) principles, and ensuring that disparate impacts to E.J. communities are addressed.

From inception, the Biden administration has signaled its intention to prioritize E.J. concerns in pursuing its environmental agenda. On January 27, 2021, just one week after taking office, President Biden signed Executive Order (E.O.) 14008, which, in addition to addressing climate change and clean energy matters, set forth broad E.J. objectives for the administration, declaring:

Agencies shall make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts. It is therefore the policy of my Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.

(E.O. 14008, Section 219.)

Building upon the objectives outlined in the E.O., the Roadmap likewise prioritizes protection of disadvantaged communities as a basic tenet of its approach, noting that many known and likely sources of PFAS contamination (including military bases, airports, industrial facilities, and waste management and disposal sites) are located near low-income communities and communities of color. E.J. concerns are to be considered in pursuing each of the goals outlined in the Roadmap, which fall into three broad categories: 1) Research; 2) Restrict; and 3) Remediate, through the establishment of specific E.J. objectives.

The “Research” goal is, “Invest in research, development, and innovation to increase understanding of PFAS exposures and toxicities, human health and ecological effects, and effective interventions that incorporate the best available science.” The corresponding E.J. objective is “Conduct research to understand how PFAS contribute to the cumulative burden of pollution in communities with environmental justice concerns.”

The “Restrict” goal is, “Pursue a comprehensive approach to proactively prevent PFAS from entering air, land, and water at levels that can adversely impact human health and the environment.”  The E.J. objectives for this goal include, “Prevent or minimize PFAS discharges and emissions in all communities, regardless of income, race, or language barriers.”

The “Remediate” goal is to “Broaden and accelerate the cleanup of PFAS contamination to protect human health and ecological systems.” Two objectives highlighting E.J. concerns are: 1) “Help ensure that communities impacted by PFAS receive resources and assistance to address contamination, regardless of income, race, or language barriers”; and 2) “Accelerate the deployment of treatment, remediation, destruction, disposal, and mitigation technologies for PFAS, and ensure that disposal and destruction activities do not create new pollution problems in communities with environmental justice concerns.”

To further these E.J. objectives, the Roadmap calls for a cross-program effort to engage with affected communities.  “EPA will meet with affected communities in each EPA Region to hear how PFAS contamination impacts their lives and livelihoods.” Knowledge gained from these community engagements will inform EPA’s implementation of all the other actions called for in the Roadmap.

In addition to the cross-program effort, the actions by the media-specific offices to implement the Roadmap will likewise include E.J.-focused efforts. The Office of Water anticipates addressing E.J. matters in implementing the proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) under the SDWA, gathering data on 29 PFAS from a significantly expanded number of drinking water systems to improve EPA’s ability to conduct contamination assessments, “including analyses of potential E.J. impacts.” Similarly, the air program would use tools such as EJSCREEN to determine whether PFAS air pollution disproportionately affects E.J. communities. Likewise, the Office of Research and Development will focus on characterizing cumulative exposures to assess impacts on environmental justice communities.

In preparing the PFAS Roadmap, EPA has made a conscious effort to ensure that E.J. considerations are woven directly into the plan’s DNA, and should be expected at each stage of implementation.

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About the Author

Kevin Desharnais, an environmental litigator and counselor with over two decades of experience, practices out of the firm’s Chicago office. He can be reached at kdesharnais@dickinsonwright.com or 312-782-6660, and his biography can be accessed here.

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Ohio Enacts Sweeping Energy Legislation: HB 6 Bails Out Nuclear, Coal Rolls Back Renewables and Energy Efficiency Opponents Pursue Referendum

Ohio’s longstanding energy policy debate came to a (temporary) conclusion on July 23, 2019, when Governor Mike DeWine (R) signed House Bill (HB) 6 into law.  The bill will have significant consequences for existing electricity resources in the region, as well as Ohio’s renewable portfolio standard and energy efficiency programs.  Of course, that’s only if HB 6 survives a referendum vote.  With the initial paperwork approved as of August 29, 2019, the opponents now have until October 21 to gather enough signatures to get the referendum on the November 2020 ballot for an up-or-down vote.[1]

If HB 6 does go into effect in October 2019, its two main impacts will be: (1) establishing ratepayer-funded subsidies for specified nuclear, coal, and solar resources; and (2) reducing/eliminating Ohio’s statutory renewable and energy efficiency requirements.

Nuclear and Renewable Generation Funds

Newly enacted Ohio Revised Code (R.C.) sections 3706.40-3706.65 will require Ohio’s four electric distribution utilities to collect a total of $150 million per year to support “qualifying nuclear resources” and $20 million per year to support “qualifying renewable resources,” with the funds to be paid out from 2021 through 2028 based on a “credit” of $9 per megawatt-hour.  While the Public Utilities Commission of Ohio (PUCO) will approve the rate design for each utility – subject to statutory rate caps – the Ohio Air Quality Development Authority will take on a new role in approving applications from potential qualifying resources, issuing credits, and reducing or ceasing payments under certain conditions.

Ohio Valley Electric Corporation Cost Recovery

Pre-HB 6, the PUCO had authorized three Ohio utilities with stakes in the Ohio Valley Electric Corporation (OVEC), which operates two coal plants in Indiana and Ohio, to recover the net costs of those plants from ratepayers.  HB 6 replaces that existing cost recovery as of January 1, 2020, requiring the PUCO to create riders to recover OVEC’s net costs from customers of all four Ohio distribution utilities through 2030, subject to statutory rate caps.

Renewable and Energy Efficiency Standards

While adding financial subsidies for specific nuclear, solar, and coal resources, HB 6 cuts back on Ohio’s renewable and energy efficiency standards.  The law reduces the 2026 renewable energy benchmark under R.C. 4928.64 from 12.5% to 8.5%, while eliminating the “solar carve-out” as of 2020 and lowering the compliance baseline.  HB 6 also eliminates any renewable requirement after 2026, leaving the Ohio renewable energy credit market in limbo beyond 2027.

HB 6 likewise cuts back significantly on Ohio’s energy efficiency standard (R.C. 4928.66).  The law eliminates the annual energy savings target after 2020, substituting a cumulative 17.5% benchmark based on 2009-2020 program savings across all four Ohio distribution utilities.  Given historic savings levels, the utilities are likely to achieve that 17.5% benchmark without the need for significant, if any, efficiency programs beyond 2020.  Going forward, utility energy efficiency programs would be voluntary, subject to the approval of the PUCO, although alternative statutory provisions may provide impetus for at least some continuing programs (subject to a significantly expanded opt-out for commercial and industrial customers).

Of course, another pending bill – House Bill 247[2] – may alter this new landscape even more.  But that’s a blog post for another day….

For more information, please contact the attorneys listed below.

  

[1] The Ohio Attorney General’s office certified the referendum summary for the ballot on August 29, 2019 and the Ohio Secretary of State certified the initial 1,000 signatures required as of August 30, 2019.  The HB 6 opponents now have until October 21, 2019 to submit 265,774 signatures of registered Ohio voters (from at least 44 of the 88 Ohio counties, with at least 3 percent of total voters from each of those counties) to place the referendum on the November 2020 ballot.  If the referendum signatures pass that threshold, HB 6 is stayed until an up-or-down vote on Election Day 2020.

[2] HB 247, 133rd General Assembly, https://www.legislature.ohio.gov/legislation/legislation-documents?id=GA133-HB-247.

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Great Lakes Water Diversions – Continued Controversy

Two recent petitions challenging water diversions, one in Wisconsin and another in Michigan, reflect the continued controversy over water rights and usage that have implications, environmental and otherwise, for energy producers and transporters.

On May 25, 2018, Midwest Environmental Advocates (“MEA”) filed a petition challenging the Wisconsin Department of Natural Resources’ (“Wisconsin DNR”) April 25, 2018 approval of the City of Racine’s request to divert seven million gallons per day (“MGD”) of Great Lakes water (“2018 Racine”).

The Wisconsin DNR approved the transfer of 7 MGD from Lake Michigan to an area outside the Great Lakes Basin.  Wisconsin DNR approval is required because of the Great Lakes–St. Lawrence River Basin Water Resources Compact (“Compact”).  The Compact was entered into by the eight Great Lakes states, two Canadian provinces, and enacted into federal law.  A key aspect of the Compact is the ban on diversions of Great Lakes water outside the Great Lakes basin unless the diversion meets narrow exceptions, and the Compact requires any diversion to be primarily for residential households.  For example, in 2016, Waukesha, Wisconsin obtained a diversion of water from Lake Michigan because its water supply was contaminated with radium, a naturally occurring carcinogen.  One important condition was that all the water diverted to Waukesha must be returned, resulting in no net loss of water from the Great Lakes.

The main purpose of the 2018 Racine diversion is to supply a single private industrial customer, the Chinese owned Foxconn, and facilities surrounding the Foxconn plant.  Foxconn, a flat screen manufacturer located in Racine, Wisconsin after receiving a reported $4 billion incentive package from Wisconsin.  The diversion of an average of 7 MGD, has 5.8 MGD being used directly by Foxconn and 1.2 MGD being used by commercial facilities surrounding the Foxconn plant.  It also results in 2.7 MGD not being returned to the Great Lakes basin, largely because of evaporation. The diversion does not require unanimous approval under the Compact because less than 5 million gallons per day will be lost. None of the diverted water will be used for residential purposes.

The MEA petition asserts that the Wisconsin DNR’s approval disregards and unreasonably interprets a core Compact requirement that all water transferred out of the Great Lakes Basin must be used for public water supply purposes, defined as “serving a group of largely residential customers.”  The MEA petition asks for an administrative law judge to review and ultimately withdraw Wisconsin DNR’s approval.  The MEA argues that the Wisconsin DNR ruling could become precedent, if allowed to stand, that would undo “a core provision of the compact, essentially unraveling the international agreement and will do undetermined damage to the sustainability of the Great Lakes.”

Similarly, there is controversy over the Michigan DEQ permit granting Nestle Waters North America’s request to withdraw 400 gallons per minute of water pursuant to the Michigan Safe Drinking Water Act, 1976 PA 399, as amended.  A permit is required if the water is from a new or increased large-quantity withdrawal of more than 200,000 gallons of water per day.  The MDEQ’s approval allows Nestle to withdraw 576,000 gallons of water per day.

On May 31, 2018, the Michigan Citizens for Water Conservation (“MCWC”) filed a petition to contest the Michigan DEQ’s permit in state administrative court.  The MCWC petition claims the DEQ did not obtain “required” data on existing conditions in the field; instead, relying on Nestle-supplied data and computer models. Before Nestle can boost the pumping rate, the DEQ must approve a plan to monitor local wetlands and the health of two trout streams fed by the aquifer Nestle taps for water it bottles under the Ice Mountain spring brand in Stanwood. The DEQ called its review “the most extensive analysis of any water withdrawal permit in Michigan history.”

The permit decision and preceding deliberations caused an uproar among Michigan citizens, particularly those living in Flint and Detroit — two Michigan cities where residents have separately struggled with water safety and affordability.  Michigan law allows Nestle to withdraw groundwater for free provided the extraction doesn’t harm the environment or dry up neighboring wells.  There are also zoning challenges pending at the state court of appeals.

These extraction cases have generated significant national and global attention, and re-ignited a debate about Great Lakes water diversion and groundwater water policy.  The increased focus on water issues can pose regulatory and compliance issues for energy producers who may also seek to use water as part of the energy production process, as well as transporters who cross bodies of waters.

Should you have any questions, please contact the Dickinson Wright attorney below. Thank you.

About the Author:

Peter H. Webster is a Member and Practice Group Chair of the firm’s Municipal Law and Eminent Domain Practice Group.  He has a focus is on municipal and real estate litigation. He can be reached at 248.433.7513 and pwebster@dickinsonwright.com.

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Ohio Revises Administrative Regulations Associated With Commercial-Scale Wind Farms

On March 15, 2018, the Ohio Power Siting Board (OPSB) finalized proposed additions and revisions to administrative regulations associated with commercial scale wind farms. The finalized rule package is the result of a two-year review process, complete with three separate stakeholder comment periods, an opportunity for rehearing, and numerous different iterations of proposed rules.

A diverse group of stakeholders participated in the rulemaking discussion, including Icebreaker Windpower, Inc., the Mid-Atlantic Renewable Energy Coalition, Greenwich Windpark, LLC, Union Neighbors United, Greenwich Neighbors United, the Black Swamp Bird Observatory, the American Bird Conservancy, the Ohio Environmental Council, and the Ohio Farm Bureau Federation. After considering all testimony and hundreds of pages of stakeholder comments, the OPSB finalized a robust regulatory framework covering every conceivable health, safety, ecological, and environmental impact of commercial scale wind.

One can view a complete summary of all new and revised rules here. Ohio’s wind regulations now address all aspects of wind project development, including, but not limited to: operational sound restrictions; regulations governing wind turbine ice throw, blade shear, or shadow flicker; wind turbine setbacks and setback waiver rules; the process required for purposes of project reconstruction, enlargement, alteration, or amendment; and rules pertaining to the decommissioning of wind farms. Although the wind industry voiced concern over certain additions/revisions, it is believed the package as a whole appropriately balanced the interests of all stakeholders and ultimately delivered the stable regulatory environment needed for responsible development to occur.

The new rules come in the midst of an ongoing debate in the Ohio General Assembly regarding the minimum state-mandated distance between wind turbines and adjacent property lines and structures. In 2014 lawmakers almost tripled the state’s wind turbine “setback” law, rendering it the most restrictive in the country. That law made new Ohio wind projects virtually impossible to build—since the change, zero new wind farms have been permitted by the OPSB. It has been referred to as a “functional moratorium.” At the same time, Illinois, Michigan, and Pennsylvania have seen tremendous growth as demand for wind energy is at an all-time high.

Wind developers are hopeful that Ohio’s legislature will revise the state’s setback requirements yet this year. In advocating for a change, proponents continue to highlight the tremendous economic benefits of wind project development, including $4.2 billion in local economic investment and the creation of over 13,000 new, Ohio-based jobs.

The new wind rules took effect April 26, 2018. Should you have any questions, please contact the Dickinson Wright attorneys below. Thank you.

About the Authors:

Terrence O’Donnell is a Member and Chair of the firm’s Government Affairs, School Law, Franchise Law Practice Group. His focus is public policy advocacy at the Ohio statehouse and regulatory compliance. He can be reached at 614-744-2583 or TODonnell@dickinsonwright.com.

Christine Pirik is Of Counsel in the firm’s Columbus office. As an attorney with over 31 years in public service, Ms. Pirik previously served as Chief of Staff and Deputy Legal Director for the Public Utilities Commission of Ohio (PUCO) and the Ohio Power Siting Board (OPSB). She can be reached at 614-591-5461 or cpirik@dickinsonwright.com.

William Vorys is an Associate in the firm’s Columbus office. He focuses his practice primarily on government relations and administrative law, advocating public policy at the Ohio statehouse and assisting clients with regulatory compliance. He can be reached at 614-744-2936 or WVorys@dickinsonwright.com.

  

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Controlled Burn: The Department Of Justice Announces It Will Not Rely On Agency Guidance Documents In Affirmative Civil Enforcement Cases

On January 25, 2018, Associate Attorney General Brand issued a memorandum titled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” (the “Brand Memo“) which clarified that Department of Justice (the “Department“) civil litigators may not rely on guidance documents issued by executive branch agencies when enforcing federal regulations via affirmative civil enforcement actions (“ACE“).1 Regulated parties that are or may become subject to ACEs should be aware of this significant change in federal regulatory enforcement policy. This article: (1) describes the basic process that agencies are supposed to follow when promulgating new binding rules; (2) explains how agencies have circumvented this process by issuing binding rules embedded in purportedly non-binding “guidance documents”; and (3) analyzes how the Brand Memo (and its predecessor, the Sessions Memo), may clear away some of the regulatory overgrowth and assist regulated parties in meeting their federal regulatory compliance obligations.

Procedures for Issuance of Administrative Rules

Under well-established Supreme Court precedent, Congress may delegate rulemaking functions to executive branch agencies, so long as Congress provides an “intelligible principle” to guide the exercise of such authority and constrain agency discretion.2 The Administrative Procedure Act (the “APA“)3 creates a set of policies and procedures that agencies must follow to exercise their rulemaking powers. Most significantly, Section 553 of the APA generally requires federal agencies to provide public notice and an opportunity to comment on any proposed rule. If an agency fails to follow the procedures prescribed by the APA in issuing a new rule4, a regulated party may ask a court to declare the rule invalid on procedural grounds.5

Guidance Documents

Notably, however, agencies do not need to follow notice-and-comment procedures to publish guidance documents, which include “interpretive rules, general statements of policy, or rules of agency organization procedure, or practice.”6 And because the notice-and-comment process can be cumbersome and time-consuming, many agencies have attempted to characterize binding rules7 —which should be promulgated under the notice-and-comment procedures—as guidance documents.8 For example, in Iowa League of Cities v. EPA,9 the Eighth Circuit addressed whether certain letters sent by the EPA to Senator Chuck Grassley merely interpreted existing regulatory requirements or “effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems.”10 The Eighth Circuit invalidated the rules described in the letters on the ground that they were substantive rules issued in violation of the APA.11 There are myriad other examples of agencies seeking to substantively bind parties through the enforcement of policies set forth in guidance documents.12

In addition to violating the APA, this tactic deprives regulated parties of notice of their additional or different compliance obligations, and deprives the public of an opportunity to assess the need for, improve the quality and clarity of, or seek judicial review of, such regulations.13 It also drastically increases the expense and burden of complying with federal regulations because regulated parties must remain cognizant not only of rules issued through the APA’s procedures, but also of the rules embedded in the constellation of informal guidance documents.14 In addition, this practice has generated extensive legal challenges from industry groups and other regulated parties, embroiling the courts in abstract and sometimes intractable disputes over whether a particular agency directive is a true “legislative rule” or a mere “interpretive rule” or “general statement of policy.”15

Sessions and Brand Memoranda

On November 16, 2017, Attorney General Sessions began paring back some of this regulatory overgrowth by issuing a memorandum, titled Prohibition on Improper Guidance Documents (the “Guidance Policy“), which prohibited the Department of Justice (the “Department“) from issuing “guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch,” or from relying on existing guidance documents to coerce regulated entities “into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.”16 However, he noted that the Guidance Policy did not apply to “documents informing the public of the Department’s enforcement priorities or factors the Department considers in exercising its prosecutorial discretion,” among other things.17

The Brand Memo expanded on the principles set forth in the Sessions Memo by prohibiting Department civil litigators from relying on any agency guidance documents: “[E]ffective immediately for ACE cases, the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules. Likewise, Department litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in ACE cases.”18 The Brand Memo is not a panacea for beleaguered regulated parties. For example, the Department could still rely on an aggressive interpretive rule in pushing for a favorable settlement of a suit relating to an environmental regulatory violation. But it will, at least, narrow the universe of applicable regulations and assist parties with understanding and meeting their compliance obligations.19 It is also possible that the Sessions and Brand Memoranda will in some cases reduce the regulatory certainty enjoyed by some regulated entities: for example, the Sessions Memo may limit the Department’s ability to send comfort letters to regulated entities assuring them that they will not be the target of an enforcement action if they engage in certain proposed conduct. 20 In the aggregate, however, a controlled burn of regulatory overgrowth that ultimately requires Department civil litigators and regulated parties to play by the same set of rules will likely produce outcomes in ACE cases that are fairer, and that hew more closely to the spirit of the APA.

________________________________

1 Associate Attorney General Brand, Department of Justice, Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases at 1-2 (Jan. 25, 2018), available at https://www.justice.gov/file/1028756/download. The term “guidance documents” means “any agency statement of general applicability and future effect, whether styled as ‘guidance’ or otherwise, that is designed to advise parties outside the federal Executive Branch about legal rights and obligations.” Id. at 1 & n.1.

2 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (citing J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394)).

3 Pub. L. 79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. §§ 500 et seq.).

4 See 5 U.S.C. § 553.

5 See, e.g., PPG Indus., Inc. v. Costle, 659 F.2d 1239, 1250 (D.C. Cir. 1981) (remanding a proposed rule to the EPA because the EPA failed to adhere to the APA’s notice and comment procedures).

6 5 U.S.C. § 553(b)(A); see also n.1, supra.

7 The term “rule” is defined in the APA to mean:
the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing[.] 5 U.S.C. § 551(4).

8 See, e.g., Nat’l Mining Ass’n v. McCarthy, 753 F.3d 243, 251 (D.C. Cir. 2014) (“An agency action that purports to impose legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action for violations of those obligations or requirements—is a legislative rule. An agency action that sets forth legally binding requirements for a private party to obtain a permit or license is a legislative rule. (As to interpretive rules, agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties, is an interpretive rule.) An agency action that merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy.”).

9 711 F.3d 844 (8th Cir. 2013).

10 Id. at 854.

11 See Richard A. Epstein, The Role of Guidances in Modern Administrative Procedure: The Case for De Novo Review, 8 J. OF L. ANALYSIS 47, 71-73 (June 2016).

12 See, e.g., id.

13 See id. at 63.

14 See id. at 61.

15 See id.; see also Iowa League of Cities, 711 F.3d at 872-73 (setting forth a test for distinguishing between legislative and interpretive rules).

16 Attorney General Sessions, Department of Justice, Prohibition on Improper Guidance Documents at 1-2 (Nov. 16, 2017), available at https://www.justice.gov/opa/press-release/file/1012271/download.

17 Id. at 2.

18 Id.

19 See id. (“[T]he Department should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation. That a party fails to comply with agency guidance expanding upon statutory or regulatory requirements does not mean that the party violated those underlying legal requirements; agency guidance documents cannot create any additional legal obligations.”).

20 See Sessions Memo, supra n.11, at 1 (“It has come to my attention that the Department has in the past published guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without undergoing the rulemaking process. The Department will no longer engage in this practice.”).

       

This blog was a previous client alert and is published by Dickinson Wright PLLC to inform our clients and friends of important developments in the field of administrative & regulatory Law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.