The Nickel Report

As previously forecast, the winds of change are heading to the home of America’s offshore energy industry. On February 22, 2023, the US Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) announced the first-ever offshore wind lease sale in the Gulf of Mexico (GOM). The proposed GOM sale comes in the middle of the comment period on the agency’s proposed changes to the offshore wind regulations.

The Proposed Sale Notice (PSN) includes 102,480 acres near Lake Charles, Louisiana, and two areas near Galveston, Texas, one comprising 102,480 acres, and the other comprising 96,786 acres (see the below image). BOEM appears to be interested in comments on regulations that would limit leasing near Galveston to a single area or potentially eliminate the sale of leases in either area.

The Maine Department of Environmental Protection (DEP) recently released a long anticipated proposed rule that would implement the procedures for Maine’s 2021 law[1] requiring manufacturers to submit notifications to DEP for products and product components containing intentionally added per- and polyfluoroalkyl substances (PFAS) sold in the state. Stakeholders will have until May 19, 2023, to provide comments on the proposal.

While Maine’s notification requirements went into effect on January 1, 2023, the proposed rule provides critical details on the applicability and procedures for notifications. Many manufacturers who received extensions from the January 1, 2023 notification deadline will be interested in reviewing the details of this proposal. The proposed rule provides important clarifications about the notification requirements, including:

A Tennessee federal district court recently awarded a defendant summary judgment on multiple Clean Water Act claims because they were time-barred under the “concurrent-remedies” doctrine.  Relying on case law from the Fifth Circuit holding that the concurrent-remedies doctrine is “alive, well, and strong” as applied to private plaintiffs, the court held that the plaintiff’s claims were barred in their entirety with respect to all legal and equitable relief based on the expiration of the limitations period applicable to claims for civil penalties. Starlink Logistics Inc. v. ACC, LLC, No. 1:18-CV-00029, 2023 WL 1456179 (M.D. Tenn. Jan. 31, 2023).

In January 2023, federal agencies released their “Fall 2022” Regulatory Agendas that provide roadmaps for upcoming and long-term regulatory actions on chemicals that could have significant implications for the regulated community. These agendas make clear that the Biden Administration continues to prioritize regulatory actions to address per- and polyfluoroalkyl substances (PFAS) across multiple agencies. And the US Environmental Protection Agency (EPA) also continues to implement numerous regulatory initiatives to assess and mitigate chemical risks under the strengthened Toxic Substances Control Act (TSCA).

Hunton’s chemical regulatory team has provided analyses of these upcoming regulatory actions:

• EPA’s “Fall 2022” Regulatory Agenda – Upcoming PFAS-Related Actions
• EPA’s “Fall 2022” Regulatory Agenda – Upcoming Toxic Substances Control Act (TSCA) Actions

As we described in a recent post, the Department of the Interior’s (DOI) Bureau of Ocean Energy Management (BOEM) announced the signature of its proposed Renewable Energy Modernization Rule in mid-January 2023. The proposed rule – which is intended to update and modernize the regulations governing wind energy development on the Outer Continental Shelf (OCS) – was published in the Federal Register on January 30, opening a 60-day comment period. 

As we described in a recent post, the Department of the Interior’s (DOI) Bureau of Ocean Energy Management (BOEM) announced the signature of its proposed Renewable Energy Modernization Rule in mid-January 2023. The proposed rule – which is intended to update and modernize the regulations governing wind energy development on the Outer Continental Shelf (OCS) – was published in the Federal Register on January 30, opening a 60-day comment period.