The California State Water Resources Control Board (Water Board) has issued Order WQ 2020-0015-DWQ, requiring Publicly Owned Treatment Works (POTWs) with dry weather design flows greater than 1 million gallons per day to test for per- and polyfluoroalkyl substances (PFAS) in influent, effluent, biosolids, and, in some cases, groundwater. POTWs with existing groundwater monitoring programs may be required to submit initial documentation for compliance as early as August.

The order covers thirty-one PFAS analytes (see table provided here), as well as eleven additional analytes listed for “optional analysis.” All treatment sampling and analysis and groundwater monitoring proposals and analysis must be uploaded to the Water Board’s GeoTracker system, and will be incorporated into the Board’s ongoing PFAS mapping project.

On July 8, 2020, EPA pre-published a proposed rule to amend the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT) in response to three remands issued by the D.C. Circuit—two in 2016 in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) and one in 2018 in Sierra Club, et al. v. EPA, 884 F.3d 1185 (D.C. Cir. 2018). Based on the proposal, EPA’s effort to comply with those decisions will make 28 emission limits more stringent than they were before, many only marginally so, but some by more than an order of magnitude.

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.

This week, the U.S. Environmental Protection Agency (EPA) crystalized a new requirement that facilities manufacturing, processing, or otherwise using any of 172 different per- and polyfluoroalkyl substances (PFAS) submit Toxics Release Inventory (TRI) reports by July 1, 2021, for calendar year 2020. The EPA created the TRI Program in 1986 under the Emergency Planning and Community Right-to-Know Act to provide the public with information regarding releases of chemicals that the EPA has concluded may pose a threat to human health and the environment. Facilities that manufacture, process, or use listed chemicals above established threshold quantities must annually report to the EPA the amounts released or otherwise disposed.

Under the Clean Water Act, stormwater is considered a nonpoint source. Accordingly, benchmark standards and best management practices have been used to manage stormwater discharges. At least in California, that all changes on July 1, 2020, as amendments to California’s Statewide General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial General Permit” or IGP) go into effect. The amendments include effluent limits for a variety of substances based on Total Maximum Daily Loads (TMDLs) adopted for impaired waterways – ranging from copper and other metals to nitrogen and phosphorus to fecal coliform and even trash for certain waterways.

As businesses across the country begin to re-open, many will be hypervigilant about the safety of indoor spaces. While stay-at-home orders may be lifting, business owners and their employees may have significant trepidation about the risks of returning to their workspaces and public venues. Building owners and property management companies will be called upon to address concerns about the safety of their tenant spaces and public areas, and the adequacy of measures taken to ensure the protection of building occupants. However, while building owners and property managers must necessarily focus on addressing the concerns arising directly from potential exposure to the COVID-19 virus, they should not ignore other potentially significant concerns associated with reopening their properties. One such concern is the stagnant conditions that may develop in a building’s water system during periods of extended disuse, which can lead to an enhanced risk for the spread of the Legionella bacteria that can cause Legionnaire’s disease, creating potential health risks for tenant, worker, and other user populations.

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.

The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. (Case No. 18-1584) and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. (Case No. 18-1587) addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the Trail crosses.

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.