The EPA’s “Secret Science” rule establishing new standards for consideration of certain “pivotal” scientific studies, which was slated to go into effect on January 6, 2021, has been vacated and remanded by the U.S. District Court for the District of Montana. The decision follows one from a few days prior in which the court rejected EPA’s attempt to make the rule immediately effective. Notably, both decisions rely on the same basic principle — that the rule is not merely procedural, as EPA claimed, but substantive. That determination could be important for other rules that the Trump EPA viewed as procedural in nature, but that have been challenged as having substantive effect.
Continue Reading UPDATE: Montana District Court Vacates EPA’s “Secret Science” Rule

On January 20, newly inaugurated President Joe Biden signed an executive order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” initiating review of nearly 50 environmental rules and regulations, including 20 air-related regulations that the new administration views as insufficient or unsupported by the data.
Continue Reading Biden EPA Hits the Ground Running with Reviews of Trump Air-Related Rules

The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.
Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance

As of September 4, 2020, Illinois has responsibility for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under state regulations, including federal Clean Air Act (CAA) requirements under authority delegated by the U.S. Environmental Protection Agency (EPA). In doing so, Illinois joins 46 other states that have elected to administer the PSD program directly.  State PSD regulations, added as Part 204 of the Illinois air quality pollution rules, 35 Ill. Adm. Code Part 204, were published in the Illinois Register on September 19, 2020.
Continue Reading Illinois Finalizes Regulations for Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act

Illinois is taking the final steps toward adopting an authorized state program for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under proposed state regulations, taking responsibility for federal Clean Air Act (CAA) requirements previously administered under delegated authority from the U.S. Environmental Protection Agency (EPA).
Continue Reading Illinois Moves to Undertake Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act

The California State Water Resources Control Board (Water Board) has issued Order WQ 2020-0015-DWQ, requiring Publicly Owned Treatment Works (POTWs) with dry weather design flows greater than 1 million gallons per day to test for per- and polyfluoroalkyl substances (PFAS) in influent, effluent, biosolids, and, in some cases, groundwater. POTWs with existing groundwater monitoring programs may be required to submit initial documentation for compliance as early as August.

The order covers thirty-one PFAS analytes (see table provided here), as well as eleven additional analytes listed for “optional analysis.” All treatment sampling and analysis and groundwater monitoring proposals and analysis must be uploaded to the Water Board’s GeoTracker system, and will be incorporated into the Board’s ongoing PFAS mapping project.
Continue Reading California’s PFAS Investigation Expands to Include Wastewater Treatment Plants

Under the Clean Water Act, stormwater is considered a nonpoint source. Accordingly, benchmark standards and best management practices have been used to manage stormwater discharges. At least in California, that all changes on July 1, 2020, as amendments to California’s Statewide General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial General Permit” or IGP) go into effect. The amendments include effluent limits for a variety of substances based on Total Maximum Daily Loads (TMDLs) adopted for impaired waterways – ranging from copper and other metals to nitrogen and phosphorus to fecal coliform and even trash for certain waterways.
Continue Reading Effluent Limits for Stormwater – California Takes the Lead with Limits Effective July 1, 2020

Today, June 1, 2020 marks the opening of the window to submit data for the four-year reporting period under the Chemical Data Reporting Rule (CDR Rule) of the Toxic Substances Control Act (TSCA). The CDR Rule requires manufacturers (including importers) of substances listed on the TSCA Chemical Inventory to submit data to EPA every four years. Companies subject to the CDR Rule should be aware of several developments that affect reporting requirements and procedures this reporting period.
Continue Reading Chemical Data Reporting Cycle Begins June 1 with Extended Deadline and New Exemptions

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by Chief Justice John Roberts, turns on a plain-text interpretation of the definition of “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Over a dissent by Justice Neil Gorsuch joined by Justice Clarence Thomas, the Court found that the affected landowners are potentially responsible parties and, therefore, restricted from challenging EPA-approved remediation plans.
Continue Reading Atlantic Richfield v. Christian Limits Property Owner Claims for Restoration Damages at Superfund Sites

Revisions to the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, go into effect on April 1, 2020. The amendments are intended to clarify methods of compliance by upstream parties, including manufacturers, producers, packagers, importers, suppliers, or distributors of products with chemicals subject to warning requirements under the Act. They also include a modified definition of the key phrase “actual knowledge,” one of the triggers that can result in retailer responsibility for warnings.
Continue Reading Proposition 65 Amendments Seek to Narrow “Actual Knowledge” and Expand Compliance Options