On October 18, U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention submitted a final rule for publication in the Federal Register, amending 40 CFR Part 372, involving reporting requirements for per- and polyfluroalkyl substances (PFAS) and supplier notifications for chemicals of special concern. The rule becomes effective 30 days after publication and applies to the reporting year 2024, with reports due July 1, 2025.Continue Reading US EPA Issues Final Rule on PFAS Relating to Community Right-to-Know and Pollution Prevention Acts
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.
Continue Reading EPA Sets Screening Levels for Five PFAS Compounds
On January 18, the White House Council on Environmental Quality (CEQ) urged the Fourth Circuit, U.S. Court of appeals to affirm the pre-application dismissal of environmentalists’ litigation over a Trump era rule that significantly altered how agencies utilize the National Environmental Policy Act (NEPA), including their climate analysis.
Continue Reading White House CEQ Asks Fourth Circuit for a “Do Over” on NEPA
Gearing up for a potential final rule in summer 2023, the U.S. Environmental Protection Agency (EPA) on January 10 submitted a proposed rule to the White House Office of Management and Budget (OMB) to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). OMB reviews are generally targeted to be completed within 90 days, but they can last much longer — or be concluded more quickly — depending on the rule being studied. The submittal is consistent with what EPA forecasted in its October 2021 PFAS Roadmap and its Unified Agenda.
Continue Reading EPA’s Delivery of Draft Rule to OMB for Study Starts the Clock for Potential PFAS Reporting and Enforcement Activity by 2023
In a landmark ruling signaling a new lens with which to view the treatment of interstate water allocation, the U.S. Supreme Court issued a decision on November 22 in Mississippi v. Tennessee, et al., 595 U.S. ___ (Case No. 21o143) rejecting Mississippi’s claim to sole ownership of waters of the Middle Claiborne Aquifer within that state’s borders. Instead, the Court held that the traditional remedy of equitable apportionment used to allocate surface waters of streams and rivers should apply. The case represents the first time that the Court has held that equitable apportionment applies to groundwater, which may open the door to new disputes among border states who claim equal rights to underground water resources.
Continue Reading Equitable Apportionment of Interstate Waters Sinks to New Levels
The financial world appears to be reeling from the recent board of director election held by Exxon Mobil Corp. (Exxon) in which activist Hedge Fund Engine 1 (Engine 1) garnered enough votes to seat two directors (Kaisa Hietala and Gregory Goff), and potentially more, as the vote count continues. In the grand scheme of things, eight of Exxon’s nominees, including CEO Darren Woods, were re-elected to the 12-member board, and yet still, Engine 1 placing directors while sporting $50 million in holdings among over a $250 billion market cap for Exxon is worthy of note. The efforts of Engine 1 were aided by other large shareholders, such as BlackRock, Inc., Exxon’s second largest shareholder. The debate around the dissident directors centered on climate change issues.
Continue Reading Exxon Mobil Corp. Board Turnover: A Cautionary ESG Tale or Recipe for Success
In an April 1, 2021 ruling, the U.S. Supreme Court overruled Florida’s exceptions to the decision of Special Master Judge Paul Kelly in its long-running dispute with Georgia over the use of water in the Apalachicola-Chattahoochee-Flint (ACF) river basin. The oral argument in the case, held February 22, 2021, seemed to point to several open questions where the justices could have made new law or clarified the tests associated with an equitable apportionment action. However, in the end, it came down to just the content of the evidentiary record, which was not in Florida’s favor, especially with the application of heightened standards of review.
Continue Reading Georgia Prevails Before Supreme Court In Long Running Water Wars Dispute
The topic of environmental justice garnered more attention as the Biden-Harris administration took office. On February 11, HB 432 was introduced by six Democrats in Georgia’s House of Representatives. The proposed bill is titled “Georgia Environmental Justice Act of 2021” and is the first proposed legislation in Georgia that directly addresses environmental justice. Below are the highlights of the contents of the proposed bill.
Continue Reading Environmental Justice in Georgia: Proposal of the Georgia Environmental Justice Act of 2021 (Proposed HB 432)
Today, in U.S. Fish and Wildlife Service et al. v. Sierra Club Inc., Case No. 19-547, the United States Supreme Court struck down a Ninth Circuit Court of Appeals’ ruling that the federal government was required to turn over documents with regard to a proposed U.S. Environmental Protection Agency (EPA) regulation for power plant cooling. The Sierra Club brought a Freedom of Information Act (FOIA) suit for access to documents related to the proposed rule, including biological opinions. The EPA’s rule regulates cooling water intake structures, which draw water from lakes, rivers, and other sources to moderate the temperature of water produced during operations of power plants and other industrial facilities.
Continue Reading Supreme Court Sides with Agency on Deliberative Process Privilege
A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al., a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.
Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional