The Nickel Report

Trends and Developments in Energy and Environmental Law

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A B C D E F G HIJ K L M N O P Q RST UVWXYZ

Arthur E. Schmalz

Penny A. Shamblin

Michael R. Shebelskie

Lisa Montgomery Shelton

George P. Sibley, III

Joseph C. Stanko Jr.

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Asbestos Reporting and Regulation to be a TSCA Focal Point for EPA in 2021

By Alexandra B. Cunningham, Matthew Z. Leopold, Gregory R. Wall & Elizabeth Reese

January 14, 2021

A flurry of asbestos-related activity in the last weeks of 2020 will require the United States Environmental Protection Agency (EPA) to devote significant regulatory attention to asbestos in 2021. The incoming Biden Administration will need to address these Toxic Substances Control Act (TSCA) developments, and the scope of that response will determine whether regulatory implications extend beyond asbestos to other chemical substances.…

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TCEQ Develops Standard Permit for Marine Loading Operations

By Lisa Montgomery Shelton

January 13, 2021

On December 18, 2020, the Texas Commission on Environmental Quality (TCEQ) published notice of its intent to issue a non-rule standard permit for Marine Loading Operations (MLO). [i] The 30 day comment period ends on January 22 and instructions for the submittal of written comments are provided in the notice. A telephonic public meeting will be held on January 21 at 10:00 a.m. Instructions for participation are provided in the notice. In addition, the standard…

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USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry

By Eric J. Murdock, E. Carter Chandler Clements & Linda C. Trees

January 12, 2021

Energy_flock of birds attacking wind turbine

On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity). 86 Fed. Reg. 1134 (January 7, 2021). The rule, which lists an…

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The EU Drive toward a Sustainable Battery Framework and Seeing Around the Corner in the US

By Samuel L. Brown, Lauren A. Bachtel, Prof. Lucas Bergkamp & Clare Ellis

January 11, 2021

The European Commission (EC)–the executive branch of the European Union (EU)–recently proposed a comprehensive regulatory framework for batteries (the proposal). The finalized proposal would replace the existing Battery Directive, which currently covers only the end-of-life stage of batteries. The proposal is the first action taken by the EC under its new Circular Economy Plan and is viewed as a necessary step towards meeting the European Green Deal’s goal of zero net greenhouse…

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Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

By Andrew J. Turner, Karma B. Brown & Brian R. Levey

January 5, 2021

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not…

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TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review

By Lydia González Gromatzky

December 30, 2020

On November 27, 2020, the US Environmental Protection Agency (“EPA”) published notice that the Texas Commission on Environmental Quality (“TCEQ”) has applied to the US EPA for National Pollutant Discharge Elimination System (“NPDES”) program authorization for discharges of produced water, hydrostatic test water and gas plant effluent. [1] TCEQ’s application (“Application”) was filed in response to a bill passed during the last Texas legislative session that required TCEQ to submit to EPA no later than…

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Pulling on the same oar? Federal, State, and Local Measures Need Alignment to Achieve Climate Goals

By David C. McSweeney & Michael J. Altieri

December 23, 2020

The Commonwealth of Massachusetts is poised to outline its planned steps to achieve the goals of its climate change-focused policies. On December 7, 2020, the Massachusetts Executive Office for Energy and Environmental Affairs (“EOEEA”) hosted a webinar to discuss the development and pending release of the Massachusetts Decarbonization Roadmap to 2050 (the “Roadmap”), which EOEEA indicates it will publish this month. The Roadmap constitutes the plan of the Commonwealth to identify cost-effective and equitable pathways…

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Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

By Andrew J. Turner & Brian R. Levey

December 18, 2020

Florida_Wetlands_(19114335522) — From Wikimedia Commons, the free media repository

Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994. Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida. Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection…

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FERC Affirms ROE Methodology for Public Utilities

By Myles F. Reynolds, Ted J. Murphy & Brian M. Zimmet

December 17, 2020

Energy_High voltage transmission line tower

On November 19, 2020, the Federal Energy Regulatory Commission (“Commission”) issued Opinion No. 569-B, its latest order addressing evaluations of whether a public utility’s return on equity (“ROE”) is just and reasonable under Section 206 of the Federal Power Act (“FPA”). [1] As described herein, the Commission largely reaffirmed the methodology established in its prior related opinions. See here.…

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EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

By Matthew Z. Leopold & Gregory R. Wall

December 16, 2020

Biotechnology_test tubes with lab glassware

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple…

The Nickel Report

Trends and Developments in Energy and Environmental Law

Blog Authors

Asbestos Reporting and Regulation to be a TSCA Focal Point for EPA in 2021

TCEQ Develops Standard Permit for Marine Loading Operations

USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry

The EU Drive toward a Sustainable Battery Framework and Seeing Around the Corner in the US

Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review

Pulling on the same oar? Federal, State, and Local Measures Need Alignment to Achieve Climate Goals

Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

FERC Affirms ROE Methodology for Public Utilities

EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

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