EPA Proposes to Delay the Effective Date of RMP Rule Amendments to 2019

On April 3, 2017, the U.S. Environmental Protection Agency (EPA) published a proposed rule that would delay the effective date of the recent Risk Management Program (RMP) rule amendments to February 19, 2019. 82 Fed. Reg. 16146 (Apr. 3, 2017). EPA published amendments to the 40 C.F.R. Part 68 RMP rule in the final days of the Obama administration. 82 Fed. Reg. 4594 (Jan. 13, 2017). Those amendments changed a number of RMP program elements, including compliance audits, the process hazard analysis (PHA) process, emergency response drills and preparedness activities, and information sharing with...

For Those Keeping Tally, Another Win for Defendants’ Rights: Exploring De Novo Review and Burdens of Proof

On March 30, 2017, the U.S. District Court for the Eastern District of California issued an order denying, without prejudice, the Federal Energy Regulatory Commission’s (“FERC” or the “Commission”) Motion to Affirm Civil Penalties against Barclays Bank PLC and four individuals (“Defendants”). [1] As an initial matter, the court agreed with every other federal court that has opined on the issue of whether defendants are entitled to conduct discovery under the Federal Rules of Civil Procedure. [2] Notably, though, the court went further than any other court in rejecting arguments raised by FERC...

President Trump Signs Executive Order “Promoting Energy Independence and Economic Growth”

On March 28, President Donald Trump signed an Executive Order titled “ Promoting Energy Independence and Economic Growth .” Touted by the administration as both “protecting the environment and promoting [the] economy,” [1] the Order aims to “promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” To accomplish these goals, the Order rescinds key pieces of the prior administration’s environmental agenda and requires federal...

Federal Procurement: CBCA side with DOE on Nuclear Contractor’s Claim for Additional Fees

On March 23, 2017, the Civilian Board of Contract Appeals (CBCA) granted summary judgment to the Department of Energy in a contract dispute with CB&I AREVA MOX Services, LLC (Mox Services) over the appropriate fee in a contract for mixed oxide fuel fabrication and reactor irradiation services with the National Nuclear Security Administration (NNSA). The contract at issue was a cost-plus-fixed-fee contract originally awarded in 1999, which called for the design and planning of a domestic mixed oxide fuel fabrication facility. MOX’s contract also provided for three option phases for cold...

Texas Regional Haze: Fifth Circuit Grants EPA’s Motion to Remand the Texas Regional Haze FIP

On March 22, 2017, the U.S. Court of Appeals for the Fifth Circuit allowed EPA to revise and change the Texas Regional Haze Federal Implementation Plan (FIP) when it granted EPA’s motion to remand the plan to EPA for revision. FIPs are issued when EPA does not agree with the measures taken by States in their State Implementation Plan (SIP) and when EPA second-guesses a State’s regulatory decision making. The Obama Administration issued FIPs and overruled State judgment more than any other previous Administration. The Trump Administration has vowed to use FIPs less and defer much more to...

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