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.

On June 1, the Environmental Protection Agency (EPA) released a final rule clarifying substantive authorities and procedural requirements for water quality certifications under section 401 of the Clean Water Act (CWA). EPA’s August 2019 notice of proposed rulemaking (NOPR) (summarized in our previous post) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping substantive and procedural changes to its section 401 regulations in conformance with its interpretation. EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in adopting new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (TAS) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.

Today, June 1, 2020 marks the opening of the window to submit data for the four-year reporting period under the Chemical Data Reporting Rule (CDR Rule) of the Toxic Substances Control Act (TSCA). The CDR Rule requires manufacturers (including importers) of substances listed on the TSCA Chemical Inventory to submit data to EPA every four years. Companies subject to the CDR Rule should be aware of several developments that affect reporting requirements and procedures this reporting period.

The question of how to regulate temperature in water bodies is one that states in the Northwest have struggled with for years. The U.S. Environmental Protection Agency (EPA) addressed that question on May 18, 2020, when it released a draft Total Maximum Daily Load (TMDL) to achieve water quality standards for temperature in certain reaches of the Columbia and Lower Snake Rivers in Oregon and Washington. This new TMDL comes a few months after a decision from the U.S. Court of Appeals for the Ninth Circuit, Columbia Riverkeeper v. Wheeler, requiring the agency to take the lead after Oregon and Washington failed to submit their own TMDL. Comments on the draft TMDL are due by the end of July 21, 2020.

On May 26, 2020, the Ninth Circuit issued two related decisions in City of Oakland and County of San Mateo brought by California cities and counties against major oil and gas companies. Exclusively citing state law relating to, among other things, nuisance, negligence, and trespass, the California municipalities allege that the companies’ fossil fuel activities have substantially contributed to climate change and, in doing so, impermissibly caused public harm. The municipalities accordingly demand the companies reimburse their costs reacting to and preparing for the effects of climate change. At issue before the Ninth Circuit was whether these claims triggered the jurisdiction of federal courts. Answering this question in the negative, the court determined that the cases must proceed at the state level.

The new hazardous waste pharmaceutical management standards established by EPA’s Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine (“Rule”) are already effective in some states. Other states must adopt the rule by July 1, 2021 or, if a statutory amendment is required prior to the state’s adoption, by July 1, 2022. Based on this, all “healthcare facilities”[1] and “reverse distributors,”[2] as defined by the Rule, will ultimately be required to comply with the Rule (as adopted in each state).

Amid the ongoing public health pandemic, EPA has issued two fact sheets suggesting it may conclude that a federal drinking water standard for perchlorate is not warranted. In a June 2019 blog post we reported that EPA asked the public whether it should set a Maximum Contaminant Level (MCL) for perchlorate. Setting an MCL for this substance could affect both public water systems and other regulated entities. But EPA’s preliminary move last week appears to suggest that EPA is preparing to conclude that an MCL may not be warranted for perchlorate.

Authors
Mitchell Guc, Associate, Pepper Hamilton
Todd Fracassi, Partner, Pepper Hamilton
Randy Brogdon, Partner, Troutman Sanders

On May 13, nine state attorneys general filed a complaint against the U.S. Environmental Protection Agency (EPA) challenging EPA’s COVID-19 enforcement discretion policy, which we discussed in previous articles here and here. The plaintiff states are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia.