On September 12, with exactly three weeks until the U.S. Supreme Court hears oral argument in the Sackett v. EPA case, EPA sent the latest iteration of a final rule to define “Waters of the U.S.” (WOTUS) to the Office of Management and Budget for interagency review. While the Court may not issue an opinion for several months after the October 3 oral argument, WOTUS watchers will focus on the Court’s questioning and demeanor, with everyone (including EPA) trying to read the tea leaves of where the justices will land on the next big ticket WOTUS decision. EPA is moving ahead with its final rule, even though the Court may narrow the scope of waters subject to federal jurisdiction, at least with respect to the application of the significant nexus formulation preferred by the Biden administration. EPA’s timing is not all that surprising — issuing a final rule before the Court issues an opinion provides EPA with an opportunity to publicly frame, in final form, the policy preferences of this administration, while leaving open the possibility that EPA can interpret the Court’s decision, when issued, as consistent with its final rule.
Dave and Anna kick off a PFAS podcast series taped on location at the Missouri Water Seminar to provide an on-the-ground perspective of how state and local governments are dealing with the emerging regulatory framework for PFAS. Our first guest — Water Program Director Chris Wieberg of the Missouri Department of Natural Resources — explains how the “Show-Me” state uses data collection, collaboration, and risk communication to advance PFAS regulatory and management efforts statewide.
Today, the U.S. Environmental Protection Agency (EPA) announced that Administrator Regan signed a proposed rule to designate two of the most widely studied per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed designation for PFOA and PFOS, if and when finalized, would provide EPA with powerful new tools to clean up existing contamination in hot spots across the country, while seeking to hold those responsible for the releases financially accountable. The designation would also increase EPA’s reporting and information gathering authorities as the agency continues to build its database of PFAS contamination.
In a partial nod to concerns raised by the water and wastewater sector, particularly those passive recipients of PFAS contamination that are grappling with increasingly complex regulatory frameworks for their operations, EPA stated that it “will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.” This may be a welcome signal to some, but entities that manage PFOA and PFOS anywhere in their operational framework will want to brush up on some basic CERCLA liability principles as you evaluate this new proposal.
The pre-publication version of the proposal is available online. Once the proposal is formally published in the Federal Register, EPA is providing 60 days for public comment. Importantly, EPA also signaled a forthcoming Advanced Notice of Proposed Rulemaking (ANPRM), seeking comment on whether other PFAS compounds warrant CERCLA designation. It is too soon to know whether EPA is anticipating a chemical-by-chemical approach to CERCLA designation, but Gen-X and PFBS are among the likely candidates for future regulatory action. It is also likely that EPA, through its anticipated ANPRM, will seek input from the public on whether and how to address PFAS as a class of chemicals, a determination that may hinge on EPA’s ongoing efforts to broaden its sampling and toxicity assessment methodologies.
On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.
EPA released a pre-publication version of its proposal to re-write the Clean Water Act 401 Certification Rule. The proposed re-write comes after the Northern District of California vacated EPA’s 2020 Certification Rule, which the U.S. Supreme Court later reinstated. The proposal also includes conforming amendments to EPA’s certification regulations for the Section 402 NPDES program. Like EPA’s pre-2020 certification regulations, the Section 402 NPDES certification regulations are outdated and inconsistent with the 1972 Section 401 language.
Comments on the proposal will be due 60 days after it is published in the Federal Register.
The U.S. Environmental Protection Agency (EPA) this week added five PFAS chemicals for a total of six PFAS chemicals to a list of risk-based values. EPA uses these values to determine if response or remediation activities are needed. The five PFAS additions include: hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA — sometimes referred to as GenX chemicals), perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). EPA added the first PFAS substance, perfluorobutanesulfonic acid (PFBS), to the Regional Screening Level (RSL) and Regional Removal Management Level (RML) lists in 2014 and updated it in 2021 when EPA released its updated toxicity assessment for PFBS.
Tracy Mehan joins Dave and Anna to discuss his work as executive director of government affairs with the American Water Works Association and the flood of water topics inundating the drinking water sector, including new infrastructure funding, affordability as an environmental justice issue, AWWA’s perspective on PFAS and its associated superfund liability question, and updates to the lead and copper rule.
On April 28, the U.S. Court of Appeals for the First Circuit, sitting en banc, overturned its own 30-year-old precedent on the Clean Water Act (CWA), North & South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991). Under Town of Scituate, “diligent prosecution” of a federal administrative enforcement action (or certain comparable state administrative enforcement actions) would bar a later CWA citizen suit for either civil penalties or for declaratory or injunctive relief for the same violation. The First Circuit has now abandoned that holding in Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. While administrative enforcement will continue to bar citizen suits for monetary penalties, it will no longer preclude later suits for equitable relief.
This new rule reduces the incentive for CWA defendants to negotiate administrative settlements with EPA or state regulators; if such settlements will no longer bring finality to a set of allegations, a defendant might see the need to fully contest those allegations. However, the Blackstone court acknowledged that its new rule is inconsistent with the current rule in at least one other circuit, so the new decision raises the potential for future Supreme Court involvement on this issue of significant importance to the regulated community.
Today, in a 5-4 decision, the Supreme Court re-instated the U.S. Environmental Protection Agency’s (EPA’s) 2020 Clean Water Act (CWA) section 401 rule (Certification Rule). The Court stayed a decision by the U.S. District Court for the Northern District of California, which had vacated and remanded the Certification Rule back to EPA without first addressing the merits of the rule. The Supreme Court’s stay of the Certification Rule will remain in effect pending final disposition of the case.
Section 401 requires that any applicant for a federal license or permit that may result in a discharge to navigable waters seek a water quality certification from the appropriate state or tribal authority in which the discharge will originate. The Certification Rule was the first overhaul of EPA’s CWA section 401 regulations in 50 years, and sought to align EPA’s regulations with the text of the modern Clean Water Act. It also sought to clarify the substantive and procedural aspects of the rule, including the scope of state and tribal authority and the time period for a state or tribe to act on a certification request.
The Biden administration is working to propose a new section 401 regulation that would replace the Certification Rule. According to the Office of Management and Budget’s dashboard, on March 25, 2022, the EPA submitted a proposed rule proposal for interagency review.
In a move consistent with EPA’s recent uptick in oversight of state regulatory programs, EPA has proposed to establish federal water quality standards (WQS) for human health criteria (HHC) for Washington state. The proposal comes less than two months after the Office of Water rescinded a memorandum that directed EPA regions to comply with Clean Water Act statutory deadlines and give sufficient deference to technical determinations made by states that administer EPA-approved delegated Clean Water Act programs. While the proposal itself is not surprising — EPA telegraphed that it would take this action early in this administration — the timing of the proposal is somewhat surprising.