As anticipated, the Environmental Protection Agency (EPA) announced on June 18, 2020, that it will not regulate perchlorate, a substance primarily found in rocket fuel and munitions, under the Safe Drinking Water Act (SDWA). Before determining to regulate a chemical or substance under the SDWA, the EPA must consider whether (1) the contaminant may have an adverse effect on the health of persons; (2) the contaminant is known to occur or there is a substantial likelihood that the contaminant will occur in public water systems with a frequency and at levels of public health concern; and (3) in the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems. 42 U.S.C. § 300g-1(b)(1)(A). In its announcement, the EPA concludes that perchlorate does not meet these criteria for regulation.
Continue Reading EPA Declines to Set Drinking Water Limits for Perchlorate

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.
Continue Reading New Jersey Adopts Stringent PFAS Drinking Water Rules and Adds Compounds to List of Hazardous Substances

The Chemical Safety and Hazard Investigation Board’s (“CSB’s”) long-awaited accidental reporting rule became effective on March 23, 2020. Under the new rule, 40 C.F.R. §§ 1604.1-1604.6, owners and operators of chemical facilities must report accidental releases that result in fatalities, substantial injury, or substantial property damage over a million dollars. This requirement includes reporting of releases that result in in-patient hospitalization, even if the hospitalization is taken as a precautionary measure.

Continue Reading New Chemical Release Reporting Rule

The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

Continue Reading FDA Authorizes Temporary Production of Hand Sanitizer

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.


Continue Reading EPA Issues Part B to its Holistic Approach to CCR Unit Closure Proposal

On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.

Continue Reading PFAS Litigation Continues as EPA Proposes Increased Federal Regulations

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.

Continue Reading Trump Administration Releases Final WOTUS Rule

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.

Continue Reading Court Dismisses PFOA and PFOS Contamination Claim Amidst Changing Regulatory Landscape

On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”


Continue Reading Senators Examine Section 319 Nonpoint Source Management Program

On November 13, 2019, the Environmental Protection Agency (EPA) officially opened the public comment period for its proposed revisions to its Lead and Copper Rule under the Safe Water Drinking Act. The EPA will receive comments on the proposal until January 13, 2020. A copy of proposal can be found here and an explanation of