On June 9, 2015, theFederal Energy Regulatory Commission (FERC) conditionally approved significant reforms to PJM’s capacity market, implementing the Capacity Performance Resource product, with PJM’s compliance filing due within 30 days. [1]   FERC found such reforms were necessary to address “the confluence of changes in the PJM markets, including both recent performance issues…impacted by…

On May 27, 2015, US EPA and the US Army Corp of Engineers (ACOE) released their final (and highly controversial) “Waters of the US” (or WOTUS) rule. In an effort to mollify and assure critics that the Final Rule is not an unabashed “power grab,” the Agencies continue to say that the Final Rule “will maintain all previous exclusions” and not result in any “new” permitting requirements.  Interested parties, however, remain mostly unconvinced—particularly given the modest substantive changes from the Proposed Rule.

The largest controversies continue to arise from new definitions and standards set forth in the Final Rule (not the traditionally jurisdictional categories of navigable waters, interstate waters, territorial seas and impoundments of these types of waters, which remain largely unchanged).  In response to the over 1.2 million comments received on the Proposed Rule, the Agencies did make some changes to proposed definitions to provide further clarity in the Final Rule. But, as detailed below, the Final Rule’s categories of “tributaries” and “adjacent waters” are still considered to expand the waters that are per se jurisdictional, despite the Agencies’ contentions.  For other categories of waters that require a case-by-case analysis, the Final Rule still employs the nebulous “significant nexus” test which, in turn, still permits aggregation of similarly situated waters on a “regional” basis thereby also expanding the field of jurisdictional waters.  Finally, modifications to various exemptions, like those provided for certain ditches or municipal stormwater systems, do not provide the clarity that the Agencies’ have suggested and may also provide for further expansion of the Agencies’ jurisdiction.

On June 12, EPA published its final SSM SIP Call recalling EPA-approved state air rules governing emissions associated with startup, shutdown and malfunction events at regulated facilities in 36 states.  The list of affected states is posted on EPA’s website here.  Some of these state rules have been approved and on the books for decades, while others were approved by EPA just within the last several years.  EPA is giving the affected states until November 22, 2016 to revise their SIPs and submit any new provisions to EPA for review and approval.

At the end of May 2015, Stericycle Expert Solutions released its European & US Recall Index and Notification reports. In the EU Recalls and notifications dropped in the first 3 months of 2015 but, the nut subgroup experienced a 67% increase, highlighting the importance of monitoring imported foods.

EU Recalls and Notification Reports Q1 2015…

In May, two “loophole” penalty orders were issued regarding recent fraud and manipulation investigations conducted by the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement (OE), which are discussed below. What will June bring? To start, on June 3, the House of Representatives Energy and Commerce Subcommittee on Energy and Power heard testimony, including from…