The New Jersey Department of Environmental Protection (NJDEP) recently amended its rules under the New Jersey Safe Drinking Water Act (NJ SDWA) to address per- and poly-fluoroalkyl substances (PFAS). NJDEP adopted the amendments on March 31, 2020, and published them in the New Jersey Register on June 1, 2020. 52 N.J.R. 1165(b). The United States Environmental Protection Agency (EPA) began the process for establishing drinking water standards for certain PFAS compounds in February 2020; however, with these amendments, New Jersey now has some of the most stringent PFAS drinking water requirements in the United States.
EPA Issues Part B to its Holistic Approach to CCR Unit Closure Proposal
On March 3, 2020, the United States Environmental Protection Agency (EPA) published its most recent proposed revisions to the federal Coal Combustion Residuals (CCR) rule. The proposal, which EPA has coined “Part B” to its “Holistic Approach to Closure,” is a follow-up to the Part A proposal, which EPA published in November 2019. Part of a flurry of CCR-related activity, the Part B proposal comes just days after EPA issued its proposed federal CCR permit program.
As we previously reported, the purpose of EPA’s Part A proposal was to align the Agency’s regulations with the D.C. Circuit Court of Appeals’ August 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018). To that end, Part A proposed to (1) classify clay-lined surface impoundments as unlined, and (2) require all unlined surface impoundments to close.
EPA Proposes Additional Round of CCR Rule Revisions
On November, 4, the U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the latest proposal to amend the Coal Combustion Residuals (CCR) rule. Since its original promulgation in April 2015, the CCR rule has been the subject of extensive litigation and numerous rounds of proposed and final revisions. Many of the revisions have sought to address decisions made by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) and concerns raised by both industry and environmental groups. This latest round of proposed changes—entitled “A Holistic Approach to Closure Part A: Deadline to Initiate Closure”—includes the following three categories of proposed amendments to the CCR Rule.
EPA Proposes Second Round of CCR Rule Amendments
On July 29, EPA Administrator Andrew Wheeler signed a long-anticipated proposal to amend EPA’s 2015 Coal Combustion Residuals (CCR) rule.
EPA’s proposal includes a number of changes, including the establishment of an alternate risk-based groundwater protection standard for boron, revisions to the annual groundwater monitoring and corrective action report requirements, and revisions to the CCR website requirements. The proposal also includes changes in response to the U.S. Court of Appeals for the D.C. Circuit’s August 21, 2018 remand of certain CCR rule provisions. These amendments address the “beneficial use” definition and CCR pile requirements.
EPA Proposes Approval of Georgia’s CCR Permit Program
On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program. If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.
In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval. EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined. Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level. EPA plans to issue proposals to address these topics in 2019. Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date.
EPA Excludes Farm Animal Waste from EPCRA Air Emissions Reporting Obligations
On June 13, 2019, EPA published a final rule that revises its release notification requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). Specifically, the revision exempts from EPCRA reporting air emissions from animal waste at farms. While these air emissions are now exempt from reporting requirements, releases from animal waste to other water and land must still be reported.
New York City Enacts Sweeping Climate Package
The New York City Council recently enacted a sweeping package of bills aimed at constricting carbon emissions from buildings across the City in an effort to combat climate change. Known as the “Climate Mobilization Act,” the package sets lofty goals of reducing greenhouse gas emissions from certain buildings by 40% by 2030, and by 80% by 2050. The measure is similar to recent efforts by other cities to reduce carbon emissions. For example, numerous U.S. cities, including Boston, Indianapolis, Seattle, and Washington, DC, aim to be carbon neutral by 2050. However, while these efforts focus on the use of renewable energy sources, New York aims to curb emissions through requiring the use of green building products and materials in certain buildings. As such, impacts of the Climate Mobilization Act will be realized in a different manner than other efforts.
The D.C. Circuit Sides with EPA in Phase One, Part One Decision
On March 13, 2019, a three-judge panel for the D.C. Circuit Court of Appeals granted EPA’s motion for voluntary remand without vacatur of the Agency’s recent revisions to the Coal Combustion Residuals (CCR) rule, commonly referred to as “Phase One, Part One.” The D.C. Circuit’s Order comes in response to
EPA and OSHA Publish Annual Inflation Adjustments to Civil Penalty Amounts
On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index.
EPA Publishes Updated Civil Penalty Amounts
On January 9, 2018, EPA released the pre-publication copy of its annual civil monetary penalty adjustment. The final rule is scheduled to be published in the Federal Register on January 10, 2018. The adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act, which requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. In the past, EPA only adjusted penalty levels for inflation once every several years. Beginning in 2017, however, EPA and other federal agencies must adjust their penalty amounts every year.