EPA Releases Policy Regarding Independence of its Scientific Advisory Committees

On October 31, EPA released a one-page directive and a more detailed memorandum governing the independence of its various scientific advisory committees. The basic principles announced by the agency are as follows:

  1. Strengthen Member Independence: No member of an EPA advisory committee can be a current recipient of an EPA grant or otherwise in a position that would reap direct benefit from such a grant. This does not apply to state, tribal or local government agencies that receive EPA grants.
  2. Increase State, Tribal and Local Government Participation: Committee balance should include participation from state, tribal and local governments, consistent with the committee’s purpose and function.
  3. Enhance Geographic Diversity: Committees should be balanced with members from different states and EPA regions, with an emphasis on members from historically underrepresented areas.
  4. Promote Fresh Perspectives: Committee membership should be rotated regularly.

As discussed in the EPA memorandum, much of this is driven by the longstanding requirement in the Federal Advisory Committee Act that advisory committees must be “fairly balanced” as to scientific points of view. Enforcement of this requirement has often been difficult in the past, as judicial remedies have largely been ineffective.

As also discussed in the memorandum, the composition of some advisory committees, such as the Clean Air Scientific Advisory Committee (CASAC), is dictated by statute. In most cases, however, the statutory requirements (for CASAC, a state regulator, a public health expert, an industry scientist, etc.) leave ample room for application of these principles within the statutory confines.

The EPA materials do not address whether members of current committees can be replaced before their terms expire. Another question is whether the principles apply only to committee members or also to “consultants” who are not official committee members. For example, the current CASAC PM review panel has 27 members, only six of whom are official CASAC members.

With respect to most current committees, it seems unlikely that these principles will be used to displace current members. However, to the extent that a current member advances a position believed to be scientifically unsound, opponents will be free to argue that the advice should be discounted if inconsistent with these principles. Further, the membership of many key committees will be up for renewal prior to the 2020 election. For example, EPA is currently seeking members for the new TSCA scientific review committee, and the current CASAC PM panel expires in 2018, well before EPA is expected to complete the current PM standard review.

EPA Announces Settlement with Macy’s over Hazardous Waste Violations

On October 25, 2017, EPA Region 6 announced a settlement with Macy’s Retail Holdings, Inc. (Macy’s) over violations of hazardous waste regulations, the Resource Conservation and Recovery Act (RCRA). In addition to correcting violations, Macy’s will also develop a program with the capacity to train 400 retailers in Oklahoma and Texas, and conduct third-party audits at 11 of its largest facilities within Texas, Oklahoma, Louisiana and New Mexico, among other required actions. The company will also pay a $375,000 civil penalty within 30 days of the effective date of the settlement, and must comply with all other requirements within one year.

EPA found Macy’s had violated RCRA for several periods during 2012-2015. During these times, each Macy’s store identified in the settlement generated thousands of pounds of hazardous waste to qualify as a small-quantity generator, but failed to notify EPA and state authorities. Macy’s also failed to meet the conditions for small-quantity generator status and did not complete appropriate manifests. Overall, Macy’s generated more than 269,168 pounds of hazardous waste from 2012-2015 for the 44 locations identified in the settlement.

As part of the settlement, Macy’s will develop a program to train an estimated 400 retailers in Oklahoma and Texas on how to comply with hazardous waste requirements. Live training events held in Oklahoma and Texas and will also be recorded to create a webinar version that can be shared to Macy’s locations nationwide. After completing the 11 third-party audits, Macy’s will share results with all of its other facilities (more than 620 locations outside EPA Region 6) with instructions to review the issues and address noncompliance. Macy’s will also promote the training webinars and recorded sessions to appropriate personnel nationwide.

EPA Administrator Pruitt Establishes Policy Regarding “Regulation Through Litigation”

On October 16, 2017 EPA Administrator Scott Pruitt said in a directive and accompanying memorandum that he is ending a “sue-and-settle” practice that has resulted in closed-door agreements committing the agency to “regulation through litigation.”

Under the policy, the EPA will:

  1. Publish any notices of intent to sue the Agency within 15 days of receiving the notice;
  2. Publish any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
  3. Reach out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
  4. Publish a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
  5. Expressly forbid the practice of entering into any consent decrees that exceed the authority of the courts;
  6. Exclude attorney’s fees and litigation costs when settling with those suing the Agency;
  7. Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  8. Publish any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.

This policy may lead to increased and longer litigation, with the courts exercising direct control of the outcome. For example, the court might set the schedule for publication of an overdue rule instead of the litigants. It may also lead to more influence for third party intervenors who generally are shut out of the consent order negotiations by the Department of Justice (DOJ).

One thing to keep in mind moving forward, however, is that while the DOJ does consult with the EPA on litigation strategy, technically the DOJ has the authority to settle cases. So, if DOJ wants to settle a case, it is unclear if and how Administrator Pruitt’s policy will deter DOJ’s decision-making process.

Separately, Attorney General Jeff Sessions has barred DOJ attorneys from negotiating settlements that result in payments from industry to third-party organizations, such as Supplemental Environmental Projects paid to environmental organizations.