Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA

On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.

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U.S. Environmental Protection Agency Releases Draft Risk Evaluation Under the Toxic Substances Control Act for Formaldehyde

On March 15, 2024, the U.S. Environmental Protection Agency (EPA or the Agency) published its draft risk evaluation under the Toxic Substances Control Act (TSCA) for formaldehyde. This proposal is one of a series of risk evaluations EPA is conducting as required by the 2016 amendments to TSCA.

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SEC Finalizes Climate-Related Disclosure Rules Ushering in a New Era of Public Company Climate Reporting

On March 6, 2024, the U.S. Securities and Exchange Commission (SEC) adopted final rules that will require domestic and foreign registrants to include extensive climate-related information in their registration statements and periodic reports.

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D.C. Circuit Largely Vacates EPA State Implementation Plan Call on Startup, Shutdown, and Malfunction Rules

In a 2–1 decision, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) largely vacated an Environmental Protection Agency (EPA) rule requiring 32 states to amend their Clean Air Act implementation plans (called State Implementation Plans, or SIPs) by removing provisions providing either exemptions or affirmative defenses to excess emissions from unit startups, shutdowns, or malfunctions (SSM) — times when pollution controls often cannot fully function as needed.[1] Sources in states that still have or revert to allowing an SSM defense may now have this important operational flexibility. However, stakeholders should track the actions of their individual states and keep close watch on whether EPA or environmental groups seek rehearing or appeal the ruling.

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California Air Resources Board Will Workshop Omnibus Regulation Amendments

The California Air Resources Board (CARB) announced that it will hold a public workshop to discuss amendments to its Heavy-Duty (HD) Engine and Vehicle Omnibus (Omnibus) Regulation. The amendments have been proposed following extensive discussion between CARB and the Engine Manufacturers Association (EMA) during 2023, which culminated in CARB agreeing to revise its heavy-duty vehicle emission standards to align more closely with U.S. Environmental Protection Agency standards.

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California Agencies Proceed With Revisions to Vapor Intrusion Guidance

California agencies issued a public notice that they will hold a workgroup to answer questions and engage with stakeholders on the agencies’ latest vapor intrusion guidance. The workgroup comes following years of confusion among stakeholders regarding the agencies’ application of draft guidance for addressing vapor intrusion, including during site cleanup and redevelopment.

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U.S. EPA Sets Stricter National Ambient Air Quality Standards for Particulate Matter

On February 7, 2024, the U.S. Environmental Protection Agency (EPA) issued a final rule under the Clean Air Act lowering the primary (health-based) annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter 2.5 micrometers in diameter or smaller (PM2.5) from 12 to 9 micrograms per cubic meter (µg/m3). EPA asserts that the stricter standard is based on scientific evidence showing that the current PM2.5 standard (12 µg/m3), which was established in 2012 and retained in 2020, does not sufficiently protect human health. According to EPA, based on air monitoring data from 2020-22, 119 counties would not meet the new standard of 9 µg/m3.

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U.S. Army Corps of Engineers Proposes Broader Historic Preservation Review

On February 9, 2024, the U.S. Army Corps of Engineers (Corps) published a proposed rule that would amend the Corps permitting regulations to follow the National Historic Preservation Act (NHPA) implementing regulations as developed interpreted by the Advisory Council on Historic Preservation (ACHP). Specifically, the Corps proposes removing its own NHPA regulations, Appendix C from 33 CFR part 325, and replacing them with those promulgated by the ACHP at 36 CFR part 800. This change may lengthen the regulatory review process and expand the scope of the Corps’ NHPA review.

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<a target=‘_blank’ href="https://www.sidley.com/en/people/b/boxerman-samuel-b">Samuel B. Boxerman</a>

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Keturah A. Brown

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Grace Dickson Gerbas

Dallas
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Terence T. Healey

Boston
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Kenneth W. Irvin

Washington, D.C.
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Christopher J. Polito

Washington, D.C.
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Casey Khan

Houston
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Michael L. Lisak

Chicago
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Brittany A. Bolen

Washington, D.C.
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Aaron L. Flyer

Washington, D.C.
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Brooklyn Hildebrandt

Los Angeles
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Nicole E. Noëlliste

Washington, D.C.
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Hannah Posen

Chicago
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Jack Raffetto

Washington, D.C.

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