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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Sidley Environmental Trends

Topics discussed this week:

  • California-EPA feud over air and water programs escalates
  • States sue Trump administration over Endangered Species Act rule changes
  • D.C. Circuit acts on EPA “good neighbor” regulation governing 2008 ozone standard
  • Sierra Club sues EPA alleging agency has failed to enforce “good neighbor” requirements for 2015 ozone standard

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Sidley Environmental Trends

Topics discussed this week include

  • DOJ limits use of supplemental environmental projects in settlements with state and local governments
  • D.C. Circuit limits EPA’s ability to roll back or freeze ozone national ambient air quality standards
  • Trump administration updates Endangered Species Act regulations
  • Citizen suit alleging a permit was issued or extended in violation of state and federal regulations cannot be brought against the holder of a valid permit

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