08 May 2019

Sidley Environmental Trends

Topics discussed this week include:

  • Clean Water Act groundwater case settlement proposed, potentially ending Supreme Court review
  • EPA issues draft interim cleanup guidelines for PFAS in groundwater
  • EPA reaffirms its stance that glyphosate does not pose risk to human health and is not carcinogenic
  • Virginia will not join Regional Greenhouse Gas Initiative
  • Federal Energy Regulatory Commission issues certificate for natural gas pipeline expansion in Northeast

Clean Water Act groundwater case settlement proposed, potentially ending Supreme Court review. Published reports suggest that the Hawai’i Wildlife Fund has made a settlement proposal to the County of Maui that could resolve a dispute over whether the scope of the Clean Water Act (CWA) extends to pollutants that move through groundwater before reaching regulated “waters of the United States.”  As discussed here previously, the case, County of Maui v. Hawaii Wildlife Fund (Case No. 18-260), is pending before the U.S. Supreme Court. There is an active federal circuit split on this issue, which the Supreme Court’s decision could resolve, but a settlement agreement between the environmental group and the county could end the Supreme Court’s review in this case. The Maui case is on appeal from a February 2018 U.S. Court of Appeals for the Ninth Circuit decision that affirmed that the CWA does extend to pollutants moving through groundwater. The Fourth Circuit reached a similar conclusion in a different case (Upstate Forever v. Kinder Morgan Energy Partners); while, the Sixth Circuit has held that the CWA does not extend to pollution traveling through groundwater (Tennessee Clean Water Network v. Tennessee Valley Authority). Petition for writ of certiorari has also been filed in the Fourth Circuit’s Upstate Forever case (Case No. 18-268), although the Supreme Court has not taken it up; it is possible, then, that the Supreme Court may still consider this CWA issue even if the Maui case is settled. Since the Supreme Court agreed to hear the case, the U.S. Environmental Protection Agency (EPA) released an Interpretive Statement on the issue, concluding that Congress intended to exclude releases of pollutants into groundwater from the CWA’s national pollution discharge permitting regime and instead intended groundwater discharges to be regulated by individual states and other federal environmental statutes. This Interpretive Statement is applicable in all jurisdictions other than those governed by the Ninth and Fourth Circuits.

EPA issues draft interim cleanup guidelines for PFAS in groundwater. On April 25, EPA released a draft interim guidance document that provides cleanup and remediation levels for groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), focusing on sources used for drinking water. PFOA and PFOS are two examples of a related family of thousands of ubiquitous synthetic fluorinated organic chemicals known for their nonstick and water-repellant qualities, collectively called per- and poly-fluoroalkyl substances (PFAS). The draft interim guidance covers sites being evaluated and addressed under federal cleanup programs like the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) and corrective action under the Resource Conservation and Recovery Act (RCRA). EPA’s specific interim recommendations are 1) that screening sites use a screening level set to a Hazard Quotient of 0.1 for PFOA or PFOS individually, which would be set to 40 parts per trillion (ppt); 2) to use the Agency’s previously released PFOA and PFOS provisional health advisory level of 70 ppt as the preliminary remediation goal for groundwater that is currently or potentially a source of drinking water, where no state or tribal Maximum Contaminant Level or other applicable requirement exists; and 3) where groundwater is being used for drinking water, the responsible parties at a cleanup site are to address levels of PFOA and/or PFOS over 70 ppt. EPA is accepting public comment on this draft interim cleanup document until June 10.

EPA reaffirms its stance that glyphosate does not pose risk to human health and is not carcinogenic. In a recently released interim pesticide registration review decision, EPA has reaffirmed its finding that the chemical glyphosate “is not likely to be carcinogenic to humans” and determined that the compound continues to meet the standards for registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In the same decision, though, the Agency has proposed to include new advisory language on pesticide products containing glyphosate, which would reduce “spray drift” from glyphosate application to better target intended pests and protect pollinator species. EPA’s determination about the carcinogenic potential and human health impacts of glyphosate differs from a 2015 World Health Organization International Agency for Research on Cancer (IARC) determination that the chemical is “probably carcinogenic to humans.” Based on the IARC determination, the State of California has moved to list glyphosate under its Proposition 65 regime. Public comment on EPA’s interim pesticide registration review decision will be accepted for 60 days after publication in the Federal Register. Relatedly, the Agency will be taking public comment on a petition from the Environmental Working Group and other companies and organizations petitioning EPA to reduce the tolerance level for glyphosate in or on oats and to require products containing glyphosate to explicitly prohibit preharvest use of the chemical. This comment period will end on June 5.

Virginia will not join Regional Greenhouse Gas Initiative. Gov. Ralph Northam of Virginia signed a state budget plan on May 2 that contained a provision explicitly prohibiting the Commonwealth from joining the Regional Greenhouse Gas Initiative (RGGI) as planned. Gov. Northam chose not to exercise line-item veto authority to strike the provision, citing uncertainty over his authority to take such action. This policy reversal comes after Virginia’s Department of Environmental Quality had recently approved an administrative rulemaking that would join the Commonwealth to the nine-state regional cap-and-trade program. Virginia’s entry into RGGI would have made it the second-largest carbon emitter in the program after New York.

Federal Energy Regulatory Commission issues certificate for natural gas pipeline expansion in Northeast. The Federal Energy Regulatory Commission (FERC) on Friday, May 3, issued a certificate of authorization to the Transcontinental Gas Pipe Line Company, LLC (Transco) allowing it to construct and operate an expansion of the company’s existing natural gas pipeline system in Pennsylvania and New Jersey as well as its New York and New Jersey offshore pipeline system operating in state waters. The project, at a projected cost of $926.5 million, is expected to add 400,000 dekatherms per day of firm transportation service capacity from Transco’s York County, Pennsylvania, compressor station to the company’s offshore Rockaway Transfer Point in New York state waters. FERC Commissioner Cheryl LaFleur concurred, specifically analyzing the downstream greenhouse gas (GHG) emissions effects of burning the natural gas to be supplied to end users by this pipeline expansion project based on an EPA methodology; the project Environmental Impact Statement did not quantify and analyze GHG emissions effects from downstream use of the project’s natural gas, but only the GHG effects of the pipeline expansion project construction. Commissioner LaFleur ultimately determined that the project is in the public interest and applauded Transco for entering into the record on the GHG emissions offsets of downstream end users switching from home heating oil to natural gas. FERC Commissioner Richard Glick issued a dissent in part, citing concerns that the Commission’s order violates both the Natural Gas Act and the National Environmental Policy Act because it has failed to fully consider the consequences of this project on global climate change.