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. (more…)
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. (more…)
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.
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.
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. (more…)
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.
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. (more…)
Without “Hazardous Substance” Designation, Pennsylvania PFAS Case Against Navy Seeking Cleanup Fails
As discussed last week, the U.S. House of Representatives recently passed a bill designating specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA). But unless and until the designation becomes federal law, the viability of PFAS-related cleanup claims under state law depend on whether the individual state has designated PFOA and PFOS as hazardous. Last week, in Giovanni, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed a case bringing a claim under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for alleged PFOA and PFOS contamination from facilities owned and operated by the U.S. Navy. The court found that the plaintiffs could not maintain their claim because these substances have not been designated as hazardous by either the federal or state government, as required by HSCA.
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.
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.