California Lowers PFOA and PFOS Response Levels

State governments continue to move ahead with increased regulation of per- and polyfluoroalkyl substance (PFAS)-related compounds, including recent significant steps by California. On February 6, 2020, California’s State Water Resources Control Board announced that it would reduce response levels (RLs) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) in drinking water to 10 parts per trillion (ppt) for PFOA and 40 ppt for PFOS.

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Chemical Safety Board Establishes New Accidental Release Reporting Requirements

On February 3, 2020, the U.S. Chemical Safety and Hazard Investigation Board (CSB) released a prepublication version of a final rule establishing new requirements for owners and operators of stationary sources to report accidental releases of regulated substances or other “extremely hazardous substance[s]” into the ambient air within eight hours of such release.

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EPA Standardizes Process to Petition for Objecting to Title V Air Permits

On February 5, the U.S. Environmental Protection Agency (EPA) issued a final rule in the Federal Register to streamline the process to petition the agency to object to state-issued Clean Air Act Title V air permits. The rule changes petition content and format requirements to describe the information a petition needs to include in order for EPA to review a claim of permit or permit process deficiency. With this rule, EPA also requires delegated state permitting authorities to respond in writing to “significant” comments while permitting authorities determine the significance of comments. Pursuant to the revised regulation, state permitting authorities must also submit to EPA a “statement of basis” that describes the legal and factual basis for the permit terms and conditions to be available during the public comment period and the agency’s 45-day review period.

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D.C. Circuit Denies Requests to Expedite or Pause Case Over California Waiver to Regulate Vehicle Emissions

In Union of Concerned Scientists v. NHTSA, No. 19-1230, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has denied the motion filed by the National Highway Traffic Safety Administration (NHTSA) and the Environmental Protection Agency (EPA) to expedite petitions for review challenging the agencies’ rule preempting California’s authority to set its own vehicle emissions standards. In the short per curiam order issued on February 4, the D.C. Circuit explained that the agencies have not articulated “strongly compelling” reasons to expedite the litigation. Last December, the agencies asked the D.C. Circuit to hear the case as early as this spring arguing that the standards in question are “immediately impacting” the automotive sector of the U.S. economy. The D.C. Circuit also denied the petitioners’ motion to hold the petition in abeyance pending resolution of a similar case in the U.S. District Court for the District of Columbia, which will decide on proper venue for the litigation.

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EPA and Army Corps Redefine “Waters of the United States”

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released a prepublication version of a final rule redefining which waters are subject to federal jurisdiction under the Clean Water Act (2020 Rule). A hotly contested question since the 1970s, this administration first repealed the Obama administration’s attempt at resolving the question.

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EPA Puts Cleaner Trucks Initiative Into Gear

On January 21, 2020, the U.S. Environmental Protection Agency (EPA) published an advanced notice of proposed rulemaking (ANPR) for heavy-duty engines as part of its Cleaner Trucks Initiative. The ANPR seeks comments on EPA’s plans for a new rulemaking that would set out new emission standards for oxides of nitrogen (NOx) and other pollutants for highway heavy-duty engines. Also under consideration are efforts to streamline or otherwise change certification procedures, with the stated goal of reducing costs for engine manufacturers. EPA covers a broad array of topics: lowering NOx emission standards, changing test procedures and test cycles to ensure emission reductions occur in the real world, transitioning to electrification, the impact of fuel types on after-treatment durability, potentially lengthening useful life and warranty periods, and cybersecurity, among many others. EPA is accepting comments for 30 days, until February 20, 2020. EPA has stated that it hopes to act exceptionally quickly and issue a proposed rule by late spring, with the goal of issuing a final rule as early as fall 2020.

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Ninth Circuit Dismisses Children’s Climate Case for Lack of Standing in Juliana, et al. v. United States

On January 17, 2020, the U.S. Court of Appeals for the Ninth Circuit dismissed a case brought by individual plaintiffs, including minor children, and an environmental group in the District of Oregon against the federal government, alleging climate-related injuries and violation of their constitutional rights due to the government’s failure to adequately regulate and control the use of fossil fuels.

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