Tennessee AG Jonathan Skrmetti is suing more than 20 per- and polyfluoroalkyl substance (PFAS) manufacturers, including 3M and DuPont, seeking injunctive and monetary relief under the state’s public nuisance and uniform fraudulent transfer laws.

Continue Reading Tennessee AG Sues More Than 20 PFAS Manufacturers

The U.S. Supreme Court just issued its long-awaited Sackett decision in which it significantly narrowed the scope of federal jurisdiction over “waters of the U.S.” under the Clean Water Act. Written by Justice Alito (with four other justices joining him), the decision contained three separate concurring opinions, with its operative holding as follows:

  1. The CWA extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so they are “indistinguishable” from those waters.
  2. This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

The court squarely rejected EPA’s :significant nexus” approach as inconsistent with both the text and structure of the statute. Significantly, the decision is 9-0 on the absence of EPA jurisdiction over the Sackett’s property, but 5-2-4-3 on the reasoning for why EPA lacked jurisdiction.

EPA has proposed to establish “baseline” water quality standards that would apply to all Indian reservation waters where the tribe has not received “treatment as a state” (TAS) authority, the state does not have authority, and the federal government has not already promulgated water quality standards. Under the proposal, tribes will have a limited opportunity to request that certain waters be excluded from the federal baseline standards, but that decision will ultimately be made by the EPA regional administrator. If a tribe receives TAS, promulgates its own water quality standards, and obtains EPA approval of those standards, the federal baseline standards would no longer apply.

Continue Reading Another EPA Proposal to Overhaul the Water Quality Standards Program

With little fanfare, EPA has finally proposed to approve Louisiana’s Class VI underground injection control (UIC) well program. The proposal to approve Louisiana’s program comes nearly two years after the state submitted its package for consideration.

The pre-publication version of EPA’s proposal walks through the agency’s process and substantive consideration of Louisiana’s statutes, regulations, and enforcement authority. EPA proposes to conclude that the state program “meets all applicable requirements for approval under [Safe Drinking Water Act] section 1422 and the State is capable of administering a UIC Class VI program in a manner consistent with the terms and purposes of SDWA and all applicable UIC regulations.”

EPA also explains that it compared the state’s commitments on environmental justice (EJ) to EPA’s December 9, 2022 memorandum to state governors, which set out recommendations for states to incorporate EJ into Class VI programs. Though EPA concludes that Louisiana’s Class VI program “addressed all EJ elements that were discussed in the December 9, 2022 letter,” EPA is careful not to suggest that the letter establishes any new requirements for state UIC programs. Indeed, EPA references several times “LDNR’s commitments” to EJ and equity in the state-run UIC program, underscoring that these commitments are policy choices made by the state, not mandates from the federal government. This messaging may be welcomed by other states pursuing Class VI primacy, including those that have not yet memorialized EJ concepts into state law or regulation.

The proposed approval will be available for public comment for 60 days after publication in the Federal Register. A public hearing is scheduled for June 15 at the Louisiana Department of Natural Resources in Baton Rouge. EPA encourages the public to pre-register to speak at the hearing by contacting Lisa Pham at 214-664-8326 or pham.lisa@epa.gov.

After the U.S. District Court for the District of North Dakota’s April 12 ruling, the majority of the United States can no longer implement or enforce the Biden administration’s definition of waters of the United States (WOTUS). This comes as a major blow to the administration that has repeatedly touted the so-called “durability” of its 2023 WOTUS definition.

The North Dakota decision enjoining rule in 24 states follows a Texas District Court decision enjoining the rule in Texas and Idaho. This means that the majority of states must now implement the pre-2015 framework to determine if waters are federally regulated.

The pre-2015 framework also remains in the crosshairs as the U.S. Supreme Court prepares its decision in the Sackett case.

On March 13, the Environmental Protection Agency (EPA) took the long-anticipated step of proposing maximum contaminant level goals (MCLGs), as well as individual maximum contaminant levels (MCLs), for six PFAS compounds under the Safe Drinking Water Act. PFAS are a large family of synthetic chemicals that have been in use since the 1940s. Many PFAS have unique physical and chemical properties that make them highly stable and resistant to degradation in the environment, which is why they are sometimes referred to as “forever chemicals.”

An MCLG is the maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur, allowing an adequate margin of safety. An MCL is the maximum level allowed of a contaminant or a group of contaminants (i.e., mixture of contaminants) in water that is delivered to any user of a public water system (PWS). The SDWA generally requires EPA to set an MCL “as close as feasible to” the MCLG.

For PFOA and PFOS, EPA is proposing to set the MCLGs at zero and the MCLs at 4.0 ng/L (which is also the lowest level that these compounds can be quantified using currently available analytical methods). For PFHxS, PFNA, PFBS, and Gen X, EPA is proposing to set both the MCLGs and MCLs at a Hazard Index (HI) of 1.0. According to EPA, an HI is a commonly used risk management approach for mixtures of chemicals in which a ratio called a hazard quotient (HQ) is calculated for each chemical by dividing an exposure metric (here, the measured level of each of the four PFAS in drinking water) by a health reference value for each chemical. The individual ratios (HQs) are then summed across the mixture to yield the HI. If the resulting HI is greater than one (1.0), then the exposure metric is greater than the health metric, and potential risk is indicated.

Water systems with PFAS levels that exceed the proposed MCLs (once finalized) would need to take action to provide safe and reliable drinking water (e.g., installing treatment or switching to an uncontaminated water source). Activated carbon, anion exchange (AIX), and high-pressure membrane technologies have all been demonstrated to remove PFAS from drinking water systems, but often at significant capital cost and ongoing operational expense. Given the anticipated impact of the proposed MCLs on public water systems, EPA is proposing to delay the compliance date for three years, following publication of the final rule.

The proposed MCLGs and MCLs are lower in certain respects and higher in others when compared to EPA’s 2022 health advisories for the same chemicals, signaling the potential for a healthy debate of the underlying science. Further, a number of states have adopted their own state-based MCLs, which now will need to be reconsidered if they are less stringent than EPA’s proposed levels.

A 60-day public comment period will begin after EPA’s proposal is published in the Federal Register. In addition, EPA has scheduled a virtual public hearing on the proposal for May 4. EPA is scheduled to finalize the new MCLGs and MCLs by September 3, 2024.

Separately, EPA has proposed to designate PFOA and PFOS as hazardous substances under CERCLA. The comment period on that proposal closed last fall, and EPA is scheduled to finalize the designations in August 2023.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1] The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.

Continue Reading Biden Administration Presses Forward With Revised WOTUS Rule

President Biden recently signed the Flood Level, Observation, Operations, and Decision Support Act (FLOODS Act), codifying an important leadership and management tool that helped modernize federal water policy in the United States. In 2018 a “federal water sub-cabinet” was informally established to coordinate water policy across the major federal agencies responsible for developing, managing, funding, regulating, and researching water resources in the United States. The original members included senior water officials within the Department of the Interior, Environmental Protection Agency, Department of Agriculture, Army Corps of Engineers, Department of Energy, and National Oceanic and Atmospheric Administration. The subcabinet was formally established in October 2020 under Executive Order 13956, “Modernizing America’s Water Resource Management and Water Infrastructure.”

Section 13 of the FLOODS Act enshrines the same basic structure and policy focus of Executive Order 13956, while changing the name of the water subcabinet to the “Interagency Committee on Water Management and Infrastructure” or the “Water Policy Committee” for brevity. The Water Policy Committee will continue to be co-chaired by the Department of the Interior and the Environmental Protection Agency, helping to ensure that water quality and water resource management remain on equal footing as major decisions regarding the future of water in this country are debated and decided.

The focus of the Water Policy Committee will include several key areas: water sector workforce development, data management and modeling, water forecasting, water reuse and desalination, drinking water and wastewater management, flood control, nutrient management, source water protection, water supply, drought resiliency, and the promotion of restoration activities, among other topics. The original goal of the federal water subcabinet was to help ensure that America plans for the development and operation of a reliable supply of clean water for generations to come, and the FLOODS Act will help ensure the realization of that goal.

Better late than never, but on January 4, EPA published its Fall 2022 Unified Regulatory Agenda. The Reg Agenda includes a few new rulemaking initiatives and a number of schedule changes that were largely expected since EPA has been running a few months behind on most of their major rulemakings (e.g., WOTUS, 401 Water Quality Certification, Steam Electric ELG, Lead and Copper Rule Improvements).

One rather unexpected item on the Reg Agenda is a direct-final rule EPA is planning to issue in January 2023 that would retroactively extend a key deadline from the 2020 Steam Electric ELG Reconsideration Rule. Under the 2020 ELG Rule, coal-fired steam electric units were required to provide initial notification to their regulators by October 13, 2021 if they planned to retire on or before December 31, 2028. Units providing this notification were included in the permanent cessation of coal combustion (PCCC) subcategory and would not need to comply with the stringent new discharge limits in the 2020 ELG Rule. The direct-final rule EPA is planning to issue in January 2023 would retroactively extend that October 13, 2021 deadline to 90 days after Federal Register publication of the direct-final rule, which is likely to fall sometime in March or April 2023.

This direct-final rule will come just as EPA will be publishing a new steam electric ELG proposed rule, which is expected to be significantly more stringent and costly than the 2020 ELG Rule. The agency’s strategy could be to allow stakeholders to see just how stringent and costly their new proposed ELG rule will be and then provide coal-fired units another opportunity, through the direct-final rule PCCC notification extension, to choose retirement over compliance. Such a strategy would encourage more coal units to retire and promote the Biden administration’s climate and carbon goals.

Like any direct-final rule, it will automatically become final and effective if, at the end of the public comment period, the agency has not received any adverse public comments. EPA typically doesn’t pursue a direct-final rule approach for issues that would be very controversial; however, in case the agency does receive adverse public comments, the direct-final rule is typically also published as a proposed rule that can be finalized later, after the agency responds to public comments. In the Reg Agenda, EPA explains that this direct-final rule will be incorporated into its forthcoming steam electric ELG proposal and would be finalized at a later date, if not finalized via the direct-final process.

John Goodin takes a break from his recent retirement to share invaluable insights with Dave and Anna from his 32-year career in EPA’s Office of Water. John talks about the long-running “waters of the United States” rulemaking, provides an insider’s perspective on federal decision-making, and connects his passion for travel with EPA’s mission to restore and protect our nation’s waters.

Continue Reading H2-OWOW! – A Reflective Conversation with John Goodin, Former Director of EPA’s Office of Wetlands, Oceans, and Watersheds