On Tuesday, March 10, the comment period closed on the Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking (NOPR) to update its regulations implementing the National Environmental Policy Act (NEPA).

CEQ published its proposed rule on January 10, 2020 (see January 15, 2020 edition of the Environmental Law & Policy Monitor). CEQ’s proposed rule aims to update its regulations—which have not been modified since they were released in 1978—by streamlining the NEPA process and instituting changes to reduce delays and paperwork, and modifying the scope of agencies review of proposed actions.

CEQ received over 170,000 comments on the NOPR from a wide variety of groups, including environmental and conservation organizations, states and counties, Native American Tribes, industry and trade associations, renewable energy developers, and, as discussed in more detail below, organizations representing hydropower, electric cooperatives, public power corporations, and investor-owned utilities.

The Edison Electric Institute (EEI) filed comments generally supporting the NOPR’s changes to the NEPA process to make it more efficient while keeping the public sufficiently informed. Its comments also focused on the electric industry’s “clean energy transformation” and stated that agencies should, through their NEPA reviews, attempt to reasonably quantify greenhouse gas emissions to reduce challenges to environmental documents based on alleged failures to do so. EEI’s comments are available here.

The American Public Power Association (APPA) was generally supportive of CEQ’s NOPR and its efforts to streamline and modernize the NEPA process, but provided that CEQ should “continually look for ways to lessen the burden on agencies, applicants, contractors, and public participants” so that NEPA reviews can be completed on shorter timeframes. APPA’s comments are available here.

The National Rural Electric Cooperative Association (NRECA) filed comments supporting CEQ’s efforts to reform NEPA, emphasizing the importance of ensuring that the regulations are appropriately focused and streamlined to reduce burdens on NRECA members. NRECA’s comments are available here.

The National Hydropower Association (NHA) and the Northwest Hydroelectric Association (NWHA) also supported the proposed rule, expressing their appreciation for CEQ’s proposed revisions to clarify the roles of lead and cooperating agencies, revising several important definitions, and modifying the types of studies and information that can be used to develop NEPA documents. NHA’s comments, which were also supported by NWHA, are available here.

The next step in CEQ’s rulemaking is to evaluate all of the many thousands of comments received, consider all comments when preparing its final rule, and then to publish the final rule. It is not known at this time when CEQ expects to publish its final rule.

CEQ’s proposed rule is available here and comments filed on it are available here.

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

As environmental regulations have become increasingly complex, most businesses rely more heavily on legal and technical professionals to ensure an effective environmental compliance program.  Many environmental compliance professionals are subject matter specialists tasked with managing requirements associated with particular environmental programs, such as air, waste, water, or safety. When individuals who play critical roles in the compliance chain are working remotely, or become ill, those chains can break down.

On the operational side, absences due to illness or remote work arrangements for employees with responsibility for or knowledge of routine environmental compliance procedures can negatively impact compliance. This may be further complicated by the unique impacts of the coronavirus on business-as-usual. Some industry sectors are critical to the response to coronavirus, while others are being overtaxed by increased demand. Yet others, like electricity producers and waste management companies, are critical to our daily societal functions, especially when our infrastructure is under stress. Companies in these sectors simply may not be able to cease or curtail operations if environmental compliance issues arise. On the flip side, some businesses may be forced to shutter their operations. On March 19, 2020, the Governor of Pennsylvania issued an order requiring the shutdown of all “non-life-sustaining businesses” in the state and other states can be expected to follow suit.

Some environmental laws have provisions allowing for the limited suspension of certain requirements in extraordinary circumstances.[1] Those types of provisions, however, typically require some sort of affirmative action on behalf of EPA or other governmental authority to be triggered. Many federal and state environmental laws recognize “upset,” acts of God,” or emergencies beyond the control of a facility as affirmative defenses to noncompliance, but to claim the defense, a facility typically is required to notify the appropriate agency of a violation within a certain time period and submit information detailing the cause of the violation and why the violation was beyond the facility’s reasonable control.[2]

EPA and state agencies can also use their enforcement discretion not to pursue certain violations. EPA policy generally prohibits the issuance of “No Action Assurance” letters (indicating that the agency will not pursue enforcement for violation of a specific environmental requirement) outside the context of a formal enforcement proceeding.[3] Notably, the policy provides an exception “in extremely unusual cases in which a no action assurance is clearly necessary to serve the public interest (e.g., to allow action to avoid extreme risks to public health or safety, or to obtain information for research purposes) and which no other mechanism can address adequately.”[4] EPA has used No Action Assurances from time to time in the wake of natural disasters, which is probably the closest corollary to the coronavirus in the years since environmental regulations were first passed. EPA used No Action Assurances in states affected by natural disasters, including Hurricanes Katrina, Sandy, and Michael, and even after significant flooding events. They are generally limited in time and scope, however. In 2012, for example, EPA issued a No Action Assurance to New Jersey and New York in the wake of Hurricane Sandy related to federal and state rules limiting fuels that can be burned in stationary emergency diesel generators and pumps.[5] The No Action Assurance was limited in scope to engines that were being used in the public interest when the required fuel was not reasonably available and required the owners and operators to follow certain practices. The assurance was also issued for a limited amount of time and had to be extended at least twice. Based on the scope of prior No Action Assurance letters issued by EPA, a No Action Assurance letter issued in connection with the coronavirus may be of limited utility given the likelihood that impacts will be nationwide in scope and not limited to a particular industry sector or set of regulations.

In short, companies should not rely on federal or state environmental authorities to proactively resolve their concerns about potential noncompliance during the coronavirus pandemic, particularly when EPA and other federal and state agencies will be faced with their own personnel and staffing issues. In the absence of formal action regarding enforcement policies, EPA and state agencies can be expected to pursue enforcement on a case-by-case based on the facts of each specific situation.

Below are some tips for navigating environmental compliance and minimizing exposure for potential violations during this uncertain time:

  • Fix the problem. Don’t exacerbate a potential violation by letting it continue. If your company experiences a release or violates a permit requirement, address the problem and minimize any environmental impact. Do not let your company become paralyzed by uncertainty regarding how to determine, document, or report a violation. Keep noncompliance short-term.
  • Pay close attention to all reporting requirements. Depending on the type of release event (e.g., valve leak, explosion, wastewater treatment system malfunction), your company may have multiple reporting requirements across multiple programs with different time frames. Some programs, like EPCRA, trigger virtually instantaneous reporting requirements (within 15 minutes of a release). Other programs or permit requirements may have 8-hour reporting requirements, 24-hour requirements, 30-day follow-up requirements, etc. Map them out and come up with a plan.
  • Actively manage critical compliance staff. Schedule regular status calls to address concerns and help forecast compliance gaps. Spell out a succession plan that will kick in if critical personnel are sidelined by illness. Use communication trees or other approaches to ensure critical compliance information reaches the right people in a timely manner.
  • Use additional resources as necessary. Consider the use of outside consultants, your environmental legal team, and/or even retired employees to help supplement strained internal resources. Don’t be short-sighted when trying to manage compliance resources.
  • Avoid late reporting, where possible. Do your best to submit reports on time, even if there are some concerns over usual quality control assurances. You can resubmit or amend these reports as needed when the crisis point passes. If you need to have a discussion with the environmental agency about the sufficiency of the information in a report, that is a better position to be in than turning in a late report. Some agencies have penalty policies that may automatically trigger NOVs for late reports.
  • Take compliance certifications seriously. Many environmental reports and compliance certifications require a responsible official to attest that the information provided to the agency is true, accurate, and complete. While your report will be based on the best information available at the time of submittal, you may not have all of the facts due to absence of key compliance or operations staff or for other reasons. Pay close attention to the certification requirement in your reports and include qualifying language where necessary. If you are unsure about facts, it appropriate to indicate that.
  • Carefully document noncompliant events and notify the agency as soon as possible. If a potential violation or missed deadline occurs, work with your staff and legal counsel to carefully document why compliance was not possible and what steps were taken to mitigate the impact of the noncompliance and ensure future compliance. Most importantly, reach out to regulators as soon as possible to notify them of the potential violation and work out a solution. While self-disclosure policies used by many regulatory agencies to reduce penalties for violations discovered through voluntary audits will not necessarily be applicable, many agencies still take voluntary self-disclosure and cooperation by the regulated party into account when exercising their enforcement discretion. Familiarize yourself with any affirmative defense provisions that might be applicable to your facility and ensure that you follow the steps necessary to claim that defense.
  • Stay informed and stay in contact with your regulator, where possible.
    Circumstances are changing almost daily. Businesses with facilities in different states may be subject to different orders from local or state governments. Flexibility and communication are key, as the situation is changing rapidly. Be prepared to adjust your compliance plan as circumstances and directives change and inform or coordinate with your regulator(s) as needed.

For more information on managing environmental compliance during the coronavirus outbreak, contact Randy Brogdon or Melissa Horne. Pepper Hamilton LLP and Troutman Sanders LLP have developed a dedicated Resource Center to guide clients through this unprecedented global health challenge.


[1] See, e.g., Section 110(f) of the Clean Air Act, allowing the President to declare a national or regional energy emergency, during which the Governor of an affected state could suspend certain rules for up to 4 months, and Section 211(c)(4)(c) of the Clean Air Act, allowing EPA to temporarily waive requirements related to fuel use or fuel additives.

[2] See, e.g., 40 C.F.R. § 122.41(n), the NPDES “upset” regulation.

[3] Memorandum from Courtney M. Price, Assistant Administrator for Enforcement and Compliance Monitoring re: Policy Against “No Action” Assurances, Nov. 16, 1984.

[4] Id. at p. 2.

[5] Letter from Cynthia Giles, Assistant Administrator, EPA, to Bob Martins, Commissioner, New Jersey Department of Environmental Protection, and Joseph Martens, Commissioner, New York State Department of Environmental Protection,

The U.S. Department of Justice’s (“DOJ”) Environmental and Natural Resources Division (“ENRD”) Chief, Jeffrey Bossert Clark, has issued a memorandum prohibiting the use of Supplemental Environmental Projects (“SEPs”) in civil environmental enforcement actions unless specifically authorized by Congress.

The nearly 20-page memorandum lays out Mr. Clark’s justification for his position that payments to third parties in ENRD civil settlements are inconsistent with law, namely the Miscellaneous Receipts Act. The Act requires that all monies received for the use of the United States be deposited in the U.S. Treasury. The memorandum claims that EPA’s 2015 SEP Policy effectively includes a “conversion rate” for SEPs into civil penalties. Mr. Clark conducts a detailed analysis in the memorandum of the Attorney General’s authority to settle matters and ultimately concludes that ENRD cannot agree to remedies in settlements not specified in the statutes governing the alleged violations that have no direct and specific relation to the underlying violation. Nor, he concludes, can ENRD trade monetary penalties for the funding of causes it deems worthy. The memorandum then analyzes the evolution of the use of SEPs from the early 1980s, to the 1991 EPA SEP Policy to the 2015 SEP Policy, finding that while EPA’s policy continued to evolve to address clashes with the Miscellaneous Receipts Act, such evolution has been insufficient to address the conflict.

The new memorandum supersedes DOJ’s previous January 9, 2018 policy regarding third party settlements and appears to be immediately effective without regard to potential impacts on ongoing settlement negotiations. Mr. Clark claims that while this new policy may disrupt existing cases including those in the final stages of negotiation, his earlier August 21, 2019 memorandum prohibiting SEPs in settlements with state and local governments effectively put EPA and ENRD on notice of the legal issues surrounding the use of SEPs. In a final footnote to the memorandum, Mr. Clark notes that he will next embark on a project to evaluate the use of SEP-like devices in criminal matters.

For more information regarding the memorandum and ENRD enforcement, please contact Brooks Smith or Patrick Fanning.

On March 9, 2020, EPA published its final “risk and technology review” for the standards it adopted in 2004 to regulate emissions of hazardous air pollutant (HAP) from natural gas-fired combustion turbines. Like most other such reviews, EPA confirmed that the risks presented by HAP emissions from the source category are acceptable with an ample margin of safety. EPA also concluded that there are no new cost-effective controls for reducing those emissions.

EPA has been working frantically to complete dozens of risk reviews to meet several court orders issued after EPA missed the eight-year statutory deadlines for those reviews. But one thing makes the EPA’s review of the gas turbine standards different: the gas turbine standards have never taken effect because they were stayed shortly after issuance. As a result, EPA’s review not only confirms the standards do not need to be made any more stringent, it also confirms they were never really needed in the first place. Although EPA found that ethylene oxide emissions from chemical manufacturing activities collocated with some turbines may present a somewhat higher level of risk, EPA concluded the risk associated with turbine emissions is low, even though the standard for those emissions has never been implemented.

In the proposed review published just under a year ago, EPA sought comment on whether its stay of the standard should be lifted. Several commenters strongly opposed that idea because it could potentially require all turbines built after the original applicability date of 2003 to comply with the standards in 180 days. Since many facilities have never conducted testing to determine if controls would be needed to comply, much less evaluated how long it would take to design and install those controls, compliance within 180 days was likely to be infeasible. In its final notice, EPA left the stay in place, at least for now, as it continues to review the public comments received on the issue.

While EPA has not made a final decision on whether to lift the stay, EPA has indicated that it plans to evaluate whether to “de-list” gas turbines from the HAP program entirely, as requested by several industry representatives in a petition submitted last year. According to that petition, the data underlying EPA’s modeling analysis contained errors that, once corrected, produce modeling results confirming that no facility in the source category presents a level of risk that warrants regulation. However, with only eight months left before the next presidential election, the final decision on whether to grant or deny that petition will almost certainly be made by the next administration.

For more information on the HAP standards for combustion turbines, please contact Mack McGuffey or Melissa Horne.

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.

After the USWAG decision (and before the promulgation of the Part A proposal), EPA received reports from industry groups and companies stating that there were clay-lined surface impoundments that would be required to retrofit or close, despite having liners that are equivalent or even superior to the liners the CCR rule requires. In response to these reports, EPA published its Part B proposal, which, if finalized, would establish procedures for impoundments to continue to operate by making alternate liner demonstrations. In addition, the Part B proposal would also allow for the use of CCR during closure, add an additional option for units being closed by removal of CCR, and require the submittal of annual progress reports. Each of these proposed changes to the CCR rule are discussed in turn below.

Alternate Liner Demonstration

EPA’s Part B proposal seeks to provide a pathway for surface impoundments not meeting the CCR rule’s liner requirements to continue to operate if they can demonstrate that their continued operation “pose[s] no reasonable probability of adverse effects on human health or the environment.” To make this demonstration, owners and operators of these units would need to provide EPA (or a Participating State Director) with site-specific data through a two-step process.

The first step would require an initial application “to ensure that a unit meets minimum requirements before embarking on a comprehensive alternate liner demonstration.” This would entail the owner/operator submitting a letter to EPA within 30 days of the final rule’s effective date declaring its intent to submit a demonstration. With the letter, the owner/operator would also be required to submit documentation of compliance with the CCR rule, including its location restrictions. The owner/operator would also have to show that a facility has a sufficient groundwater monitoring well network and that there is no groundwater data indicating that a CCR unit has or will adversely impact groundwater. Upon the receiving this information, EPA will evaluate the submittal and determine whether the surface impoundment is eligible to submit an alternate liner demonstration.

If EPA determines a surface impoundment is eligible, the owner/operator would then need to prepare a demonstration that the unit’s continued operation poses “no reasonable probability of adverse effects to human health or the environment in the future.” The demonstration would require, at a minimum, a demonstration that the unit has not and will not cause exceedances of relevant groundwater protection standards. To make such a demonstration, EPA proposal would require the owner/operator characterize site-specific hydrogeology and assess the potential for infiltration through the liner and soils. A professional engineer would need to certify all data, analyses, and conclusions included in the demonstration.

The Part B proposal would require owners and operators to submit site-specific demonstrations within one year of the deadline for submitting the initial application (thirteen months after the final rule’s effective date). If EPA approves the demonstration, it is effective for the unit’s remaining life. If EPA denies the demonstration, the unit would need to cease receipt of waste and initiate closure within six months.

Use of CCR During Unit Closure

Part B’s second primary proposal addresses the use of CCR in units subject to closure for cause. Specifically, EPA is proposing two options that would allow for the use of CCR during the closure process. Under the first option, EPA would maintain its prohibition on the addition of CCR after a unit triggers closure but would allow for the use of CCR “for the purposes of supporting closure of the CCR unit.” This option would allow, for example, an owner or operator to consolidate CCR from one or more units to a single unit, even though the unit receiving the CCR was already required to cease receipt pursuant to the CCR rule’s closure deadlines. In proposing this option, EPA stating that allowing such consolidation “would result in an overall smaller CCR unit footprint.” To take advantage of this option, the owner or operator would need to conduct the project under an approved written closure plan delineating how CCR would be used during the closure process.

Under the second proposed option, EPA would allow CCR to be used to support closure, so long as the CCR use meets the CCR rule’s “beneficial use” definition. As an example, EPA stated that CCR could be used as fill beneath a final cover system to achieve needed subgrade elevations to ensure proper drainage. As with the first option, the second option would require the unit’s written closure plan to document how the CCR will be beneficially used.

Closure by Removal Alternative

Part B also proposes an additional closure by removal alternative. EPA has recognized that meeting the CCR rule’s current stringent closure by removal requirements includes corrective action deadlines that may be impossible for owners and operators to meet. To address this issue, the Part B proposal would allow an owner or operator that cannot complete groundwater corrective action by the time that all other closure activities are completed to finish groundwater corrective action during a post-closure care period. This method would allow an owner or operator to certify that a CCR unit is closed, while continuing ongoing efforts to monitor groundwater.

Annual Progress Reporting

The last major revision the Part B proposal offers relates to documenting closure activities. In an effort to promote transparency surrounding the closure process, the proposal would require owners and operators to submit annual closure progress reports. Under this proposal, owners or operators that have provided notice of intent to close a CCR unit would be required to provide certain annual updates on the status of the closure. The updates include (1) a summary of the unit’s current stage of closure (i.e., dewatering of the unit, CCR removal, testing soil and sediments for complete removal, etc.), (2) an updated closure schedule that includes the dates of major closure milestones and any changes to the closure schedule, and (3) information related to any issues experienced during closure which may impact the scheduled closure of the unit and how those problems are being addressed. Under EPA’s proposal, annual progress reports would be due by January 31 of each year.

Comments on the Part B proposal must be submitted to EPA by April 17, 2020. For more information on this proposal or other rulemakings related to CCR, please contact Holly Hill or Buck Dixon.

Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

EPA’s refrigerant management program was originally intended to implement the Montreal Protocol ratified by the Senate in 1988, which prompted Congress to add Title VI to the Clean Air Act. The Montreal Protocol and Title VI required the phase-out of ODS refrigerants, including chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) that deplete the stratospheric ozone layer protecting the planet from the sun’s ultraviolet radiation. As such, the program is very different from most others under the Clean Air Act—rather than protecting the air that humans breathe, where ozone can be harmful, it protects the stratosphere, where ozone is beneficial.

Up until the tail end of the Obama Administration, EPA had only used the program to regulate appliances containing CFCs, HCFCs, and other ODS refrigerants. To minimize emissions of those substances, the program requires owners and operators of appliances containing more than 50 pounds of an ODS refrigerant to keep track of whether the appliance is leaking and then repair it quickly if the leak is above a certain threshold. The leak repair requirements served as a strong incentive for businesses to switch to non-ODS substitutes approved for use by EPA. Over the years, many businesses did switch to substitutes for commercial refrigeration appliances (e.g., grocery store freezers), various industrial processes (e.g., manufacturing of some chemicals and electronics), and air-conditioning appliances that cool the inside of large buildings.

However, many of the substitutes previously approved by EPA contain hydrofluorocarbons (HFCs) that, while not ODS, are GHGs. Seeking GHG emission reductions, the Obama EPA decided to regulate substitutes under the same rules as ODS, including the requirement for repairing leaking appliances. That 2016 expansion rule also suggested that any failure to repair a leaking appliance in accordance with the regulations could be deemed a “knowing violation,” a characterization that raised significant concerns with industry, given the severe penalties potentially associated with intentionally violating the Clean Air Act.

The final rule issued by the Trump Administration retains certain regulations for non-ODS substitutes, such as those regarding the disposal of old appliances and certification of technicians to ensure leaks are minimized when appliances are serviced. State-level regulation of non-ODS substitutes, including in Washington and California, will also remain in place. But the new rule eliminates EPA’s leak repair requirements for non-ODS appliances with more than 50 pounds of refrigerant. Litigation over the rule is likely, although no decision will be issued until after the next presidential election, when EPA’s policy preferences could shift yet again.

For more information regarding this rulemaking action, please contact Mack McGuffey, Angela Levin, or Melissa Horne.

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.

Save Our County is only the latest litigation in the ever-growing number of lawsuits relating to PFAS. While PFAS litigation initially targeted manufacturers of the chemicals, litigation efforts have expanded to include suits based on the use and disposal of PFAS-containing materials. As litigation continues to evolve, it is likely that lawsuits will continue to be filed in courts across the country.

On the regulatory front, the Environmental Protection Agency (“EPA”) has recently increased its efforts to regulate the chemicals by announcing its intent to publish a proposed regulatory determination under the Safe Drinking Water Act (“SDWA”) for PFAS. The EPA’s proposal is part of its larger 2019 PFAS Action Plan—a multi-pronged action plan detailing the EPA’s goals to increase PFAS regulation. With increased federal regulation, the prevalence of PFAS litigation is expected to continue to rise. We will continue to provide updates as increased federal regulation begins to shape ongoing PFAS litigation.

The complaint filed in Save Our County can be viewed here. Information on the EPA’s announcement of its intent to publish a regulatory determination under the SDWA can be found here and information relating to the EPA’s 2019 PFAS Action Plan can be viewed here.

For more information, please contact William Droze or Mandi Moroz.

On February 20, 2020, the U.S. Environmental Protection Agency (EPA) announced its intent to publish a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Publication will initiate a 60-day notice and comment period that represents the first step toward the adoption of Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, two of the best-understood and most common compounds under the umbrella of perfluoroalkyl substances (PFAS).

If EPA issues a final determination that these substances should be regulated following review and consideration of public comment, the SDWA requires EPA to propose MCLGs and MCLs within two years. Those standards will then be subject to a separate notice-and-comment process before they can be adopted. Notably, EPA has chosen a sequential approach to adopting regulations; EPA could have proposed numerical MCLs and MCLGs and published its preliminary regulatory determination simultaneously. The preliminary regulatory determination also specifies six contaminants that it proposes not to regulate: 1,1-dichloroethane, acetochlor, methyl bromide (bromomethane), metolachlor, nitrobenzene, and RDX.

As readers might recall from our discussion of the PFAS Action Plan, EPA published non-binding health advisory levels for PFOA and PFOS in drinking water (70 ppt individually or combined) in 2016. Neither health advisory levels nor MCLGs result in enforceable drinking water standards, but they can influence remedial actions under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). They also influence state policy; dozens of states have adopted or proposed MCLs at or below the level specified in the EPA health advisory for PFOA and PFOA. MCLs, in contrast, are enforceable limits that public water systems must not exceed, but that are informed by consideration of feasibility. For instance, MCLGs could be set as low as zero, but consideration of the cost and efficacy of available treatment technology could result in the adoption of MCLs that are above the level specified in the 2016 health advisory. Once MCLs are adopted, they must go into effect within three years, subject to extensions of up to two years.

Notably, while the proposed determinations address only PFOA and PFOS, EPA is also using their publication to gather input on “regulatory constructs and monitoring requirements” for PFAS more broadly. Specifically, EPA will request comments on whether it should evaluate PFAS compounds individually or as larger classes of compounds, based on such factors as chain length, functional groups, degradation products, co-occurrence, or fate-and-transport. EPA also intends to ask whether it should promulgate required treatment techniques for PFAS in lieu of MCLs, as the SDWA allows it to do if achieving an MCL is not feasible. Finally, EPA will seek input on a variety of possible monitoring approaches for PFAS in drinking water—including whether monitoring should be required for public water systems near likely PFAS sites, such as facilities that used certain fire-fighting foams (like an Air Force base or refinery) or facilities that manufacture products using PFAS.

The proposed determinations have not yet been published in the Federal Register, but comments will be due 60 days after publication.  We will update readers further when we learn more.

The Chemical Safety Board (“CSB”) recently issued a final rule that will add additional reporting obligations to certain releases, including those that previously did not require reporting. Last week, the CSB signed the pre-publication version of its final Accidental Release Reporting Rule. The Rule, which will become effective 30 days after its publication in the Federal Register, will require stationary source owners/operators to report to the CSB any “accidental release” resulting in:

  • A fatality;
  • A serious injury resulting in death or inpatient hospitalization; or
  • Estimated property damage at or outside the stationary source equal to or greater than $1 million.

Reports must be submitted within 8 hours after the release. Unlike reporting requirements under other environmental statutes, this new requirement does not require a release exceed a reportable quantity and applies to both listed and unlisted chemicals. In addition to chemicals explicitly listed by certain environmental statutes, the term “accidental release” also encompasses any other substances that “in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment.”  In the past, the CSB and EPA have broadly interpreted this phrase to include seemingly innocuous chemicals.

In the Rule, CSB states that “any suspected violations . . . will be forwarded to the [EPA] for appropriate enforcement action.”  Submitted reports will also be accessible by the public through FOIA requests, meaning that owners/operators should pay particular attention to the information included in the report. For more information on the Rule or its implications please contact Randy Brogdon, Mack McGuffey, or Rich Pepper.

On February 5, 2020, EPA issued a final rule revising the petition provisions of the Title V permitting program. Under the CAA Title V program, permitting authorities must submit proposed Title V permits to the EPA administrator for a 45-day review before issuing the final permit. If the administrator has no objections within this period, any person may petition the administrator within 60 days thereafter to ask EPA to object to the permit.

The rule revises the submission requirements, the content, format of petitions, and record requirements for proposed permits submitted for EPA’s review. Specific to requirements related to the submission of petitions, EPA encourages petitioners to use an electronic submittal system, and the rule has a link to information on how to properly access and use the system. In addition to electronic submittals, petitioners will have two additional options for submitting petitions. First, petitioners will be able to submit Title V petitions using the email address on the Title V petitions website when experiencing technical difficulties with the electronic system. Alternatively, petitioners without internet access will have the option of submitting paper petitions to a physical address. The regulation also specifically requires petitioners to provide copies of the petition to the permitting authority and the permit applicant.

Furthermore, the rule specifies the content and format for Title V petitions. In particular, the rule requires a petition to contain the following elements: (1) the identification of the proposed permit on which the petition is based; (2) the grounds for an objection, such as a failure to meet all applicable requirements under the CAA or a failure to follow required public participation procedures; and (3) an indication of whether the issue was raised during the public participation process. Importantly, petitioners will be prohibited from incorporating other documents by reference unless the reference provides a specific citation to an attachment and an explanation of how the referenced material supports a claim discussed in the petition.

The rule also requires permitting authorities to respond to significant comments received during the public participation process for draft Title V permits and to provide a response to comments document, a statement of basis, and the proposed Title V permit to the administrator during the 45-day review period. Should a timely petition be filed within the proceeding 60-day period, the administration may consider the administrative record for the proposed permit and the petition. The effective date of the rule is April 6, 2020.