Water

Subscribe to Water via RSS

On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks.

On March 18, 2021, FERC issued a Final Rule amending its regulations to establish a one-year period for states, tribes, or other certifying authorities (“Certifying Agencies”) to act on a Clean Water Act (“CWA”) Section 401 water quality certification request for proposed natural gas and liquefied natural gas projects.

On March 17, the U.S. Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that puts forth 28 questions directed at manufacturers and formulators of per- and polyfluoroalkyl substances (PFAS). The agency intends to use the ANPRM and comments it receives to initiate formal rulemaking to establish effluent limitations guidelines (ELGs) for facilities that manufacture or blend PFAS with other chemicals or products, likely at least initially as an amendment to the existing guidelines governing the “Organic Chemicals, Plastics and Synthetic Fibers” (OCPSF) industrial sector.

As previously reported, a coalition of environmental groups recently filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment.

Climate change and environmental justice are currently dominating the conversation in the environmental legal community, but 2021 promises to be an extremely active year for one of the most challenging environmental issues of this era — the emergence of per- and polyfluoroalkyl substances (PFAS) as a significant public health concern. The U.S. Environmental Protection Agency (USEPA) demonstrated its continued commitment to implementing the national PFAS Action Plan by announcing on February 22 two important steps toward establishing federal drinking water standards for PFAS compounds under the Safe Drinking Water Act (SDWA).

On February 11, three environmental groups — Sierra Club, Alliance for Affordable Energy, and PennEnvironment, Inc. — filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment. Part B is the second of two rulemakings comprising EPA’s “Holistic Approach to Closure” amendments to the coal combustion residuals (CCR) rule. Environmental groups filed a similar challenge to the “Part A” rule in the D.C. Circuit in November 2020. That case, Labadie Environmental Organization v. EPA, is currently pending.

On January 28, the Illinois Environmental Protection Agency (Illinois EPA) announced the issuance of health advisories for four (4) per- and polyfluoroalkyl substances (PFAS) compounds in accordance with the Illinois Part 620 groundwater regulations (35 Ill. Adm. Code Part 620). Health advisories are issued when a chemical substance that is harmful to human health, and for which no numeric groundwater standard exists, is detected and confirmed in a community water supply well (35 Ill. Adm. Code 620.605). The four (4) PFAS compounds for which Illinois health advisories were issued are PFBS, PFHxS, PFHxA, and PFOA.

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.