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On October 10, 2019, the Environmental Protection Agency (EPA) announced long-awaited proposed revisions to its Lead and Copper Rule (LCR) under the Safe Drinking Water Act. The proposed LCR revisions come nearly 30 years after the federal government last updated its lead and copper testing procedures. Originally promulgated in 1991, the LCR has long been criticized for its imprecise language and has come under fire in recent years in the wake of the water crisis in Flint, Michigan.

On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well.

For most federal rules, you don’t need a map to figure out in which states they’re the current law.  But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.”  That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations.  This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program. 

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.

On June 26, 2019, EPA published a Notice of Proposed Rulemaking requesting comment on a proposed Maximum Contaminant Level (MCL) for perchlorate under the Safe Drinking Water Act (SDWA). Perchlorate is both a man-made and naturally-occurring chemical, most commonly found in industrial operations associated with the use or manufacture of rocket fuel, missiles and fireworks. Perchlorate inhibits the uptake of iodide to the thyroid and has been detected in certain public water supply systems, primarily in the western United States. In its Notice, EPA proposes an MCL of 56 µg/L, but at the same time requests public comment on whether the MCL should be set at a higher or lower standard, or whether the agency should re-evaluate its decision to regulate perchlorate based on updated data. This rule, if finalized, could affect thousands of public water systems that would be required to comply with the new standard, as well as state and tribal agencies responsible for drinking water regulatory development and enforcement.

On April 15, 2019, the environmental group Columbia Riverkeeper (Riverkeeper) filed suit against the U.S. Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Washington, alleging that the Corps’ operation of the Chief Joseph Dam is in violation of the Clean Water Act (CWA). Riverkeeper’s complaint raises important questions as to whether certain discharges from hydropower facilities trigger the need for an authorization under the National Pollutant Discharge Elimination System (NPDES) pursuant to section 402 of the CWA, 33 U.S.C. § 1342.

On April 24, Troutman Sanders partner Sean Sullivan presented during the PFAS and Other Emerging Contaminants Conference hosted by the American Council of Engineering Companies of North Carolina.

Sean’s presentation, “Turning Science into Law: The Process for Setting Health-Based Exposure Limits” explored the Safe Drinking Water Act, the EPA’s PFAS…

On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.