House Passes Standalone Bill to Address PFAS Under Superfund and Drinking Water Laws

On Friday, January 10, 2020, the U.S. House of Representatives passed a bill that would require the United States Environmental Protection Agency (EPA) to regulate certain per- and polyfluoroalkyl substances (PFAS) under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) and Safe Drinking Water Act (SDWA). In this bill, the House addresses environmental regulation of PFAS initially considered in, but ultimately struck from, the National Defense Authorization Act (NDAA) passed by Congress and signed into law in December 2019. For more information about the PFAS provisions in the NDAA, see our write-up here.

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EPA Issues Updated Maximum and Minimum Civil Penalty Adjustments

The United States Environmental Protection Agency (EPA) has released its fourth annual civil monetary penalty adjustment, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The rulemaking became effective on Monday, January 13, 2020, and will apply to all civil penalties assessed by EPA after January 13, 2020, for violations that occurred after November 2, 2015. The new civil monetary amounts are reflected in Table 1 in 40 C.F.R § 19.4 (a copy of the revised penalty table is available in EPA’s Federal Register notice here). Other civil monetary penalty adjustment amounts applicable to violations that occurred earlier in time, or assessed before January 13, 2020, are reflected elsewhere in the tables codified at 40 C.F.R. § 19.4.

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Challenges to EPA and DOT Auto Emissions Actions Face Procedural Hurdles

After the U.S. Environmental Protection Agency (EPA) revoked California’s waiver to set its own emissions standards under the Clean Air Act, several states, cities and environmental groups challenged both EPA’s revocation and the “One National Program Rule,” a rule issued jointly by EPA and the Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA).

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EPA One Step Closer to Updating Ethylene Oxide Regulations

The White House Office of Management and Budget completed its review on November 26 of the United States Environmental Protection Agency’s (EPA or Agency) advance notice of proposed rulemaking (ANPRM) that will outline potential Agency approaches to updating the Maximum Achievable Control Technology (MACT) standard for emissions of ethylene oxide (EtO) from sterilization and fumigation facilities.

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EPA Seeking Comment on Adding PFAS to Federal Toxics Release Inventory

On November 25 the United States Environmental Protection Agency (EPA) posted a pre-publication version of an advanced notice of proposed rulemaking (ANPRM) seeking public comment on the Agency’s consideration of listing certain per- and polyfluoroalkyl substances (PFAS) to the EPA-maintained list of toxic chemicals subject to reporting under the federal Toxics Release Inventory (TRI). The TRI program was created under section 313 of the federal Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 (42 U.S.C. § 11023) and section 6607 of the federal Pollution Prevention Act (PPA) of 1990 (42 U.S.C. § 13106).

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EPA Begins Next Phase of PFAS Action Plan

On November 8, the EPA announced a public comment period on its systematic review protocol for five per- and polyfluoroalkyl substances (PFAS). PFAS is an umbrella term for thousands of chemicals historically used in manufacturing and consumer goods for their nonstick and flame-retardant properties. A PFAS chemical (typically perfluorooctanesulfonate (PFOS)) is also a major ingredient in firefighting foam used on military bases to contain industrial fires.

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Supreme Court Could Clarify Intersection Between CERCLA and State Law

On December 3, 2019, the U.S. Supreme Court will hear argument in Atlantic Richfield Co. v. Christian, et al., a case that raises the question of whether landowners may bring state-law causes of action to force Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) parties to go beyond what the Environmental Protection Agency (EPA) has ordered them to do. CERCLA allows EPA to investigate and clean up contaminated sites and to recover its costs from persons and entities (potentially responsible parties, or PRPs) that have a connection to these sites. When faced with government action at a site, PRPs sometimes elect to perform these investigations and remedial actions themselves.

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