April 29, 2024
Environmental Alert
(by Donald C. Bluedorn II, Gary E. Steinbauer, and Mackenzie M. Moyer)
On April 25, 2024, the U.S. Environmental Protection Agency (EPA) finalized changes to the coal combustion residuals (CCR) regulations to now regulate inactive surface impoundments at inactive electric utilities, known as legacy CCR surface impoundments. The Final Rule also imposes requirements on an additional, new category of CCR units, known as CCR management units, or CCRMUs. Regulated legacy CCR surface impoundments will need to comply with the requirements in Subpart D, as articulated in the Final Rule, beginning as early as six months after the date of publication of the Final Rule in the Federal Register and CCRMUs will need to comply with specified requirements beginning 21 months after publication.
The Final Rule is being promulgated in response to the August 21, 2018 opinion by the U.S. Court of Appeals for the District of Columbia Circuit in Utility Solid Waste Activities Group, et al. v. EPA, in which the Court vacated and remanded the provision of the 2015 CCR Rule that exempted inactive impoundments at inactive facilities from regulation. EPA is also expanding the CCR Rule to address CCRMUs due to the associated risks from the direct placement of CCR on the land; according to information obtained from EPA since 2015, these previously unregulated units are contaminating groundwater and pose risks similar to the risks associated with currently regulated activities. In the last year, EPA has focused on CCR Rule enforcement, adding “protecting communities from coal ash contamination” as one of EPA’s six National Enforcement and Compliance Initiatives for fiscal years 2024 through 2027. …
April 24, 2024
Environmental Alert
(by Matt Wood and Jean Mosites)
On April 17, 2024, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its long-anticipated final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers, as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The final rule will be effective 60 days after publication in the Federal Register. PFOA and PFOS are the two most prominent and studied compounds in a “family” of per- and polyfluoroalkyl substances (PFAS) consisting of thousands of manmade chemicals. PFAS have been widely used for decades in various applications, including manufacturing water-, stain-, and heat-resistant consumer products, e.g., waterproof clothing and food packaging, and as ingredients in aqueous film forming foams (AFFF) used to extinguish certain kinds of chemical fires. Research indicates that exposure to PFAS, which are prevalent and persistent in the environment, may cause various health-related impacts.
EPA’s designation of PFOA and PFOS as CERCLA hazardous substances is unprecedented and not uncontroversial because it is the first time the agency has made such designations using its authority under CERCLA Section 102, 42 U.S.C. § 9602. Until now, CERCLA has always defined hazardous substances by reference to other statutes (e.g., the Clean Water Act and the Resource Conservation and Recovery Act). To reach its conclusion that the designations were warranted, EPA says it evaluated available scientific and technical information about PFOA and PFOS to determine whether they “may present a substantial danger to public health welfare or the environment” as contemplated by CERCLA section 102(a). EPA also conducted a “totality of the circumstances” analysis considering multiple factors, including benefits versus costs. …
April 19, 2024
Environmental Alert
(by Kip Power and Robert Stonestreet)
The federal Environmental Protection Agency (EPA) has agreed to impose novel water quality requirements for West Virginia streams to resolve a lawsuit filed by multiple environmental advocacy organizations. On March 18, 2024, the Sierra Club, the West Virginia Highlands Conservancy, and the West Virginia Rivers Coalition (Plaintiffs) filed a lawsuit against EPA in the U.S. District Court for the Southern District of West Virginia (at Huntington). The suit alleges that EPA has improperly failed to take action under the federal Clean Water Act with respect to certain “biologically impaired” streams located in the Lower Guyandotte River Watershed in West Virginia. Specifically, Plaintiffs assert that because the West Virginia Department of Environmental Protection (WVDEP) has failed to do so, EPA must step in and develop pollution reduction plans (known as “total maximum daily loads” or “TMDLs”) for those streams.
However, rather than seek to reduce levels of conventional pollutants (e.g., iron, aluminum, etc.), the lawsuit addresses the concentration of dissolved minerals in the water (often referred to as “total dissolved solids” or conductivity). According to the Plaintiffs, certain levels of conductivity lead to an adverse impact (known as “ionic toxicity”) on specific species of aquatic life. Neither West Virginia nor EPA has developed a specific water quality standard for total dissolved solids or conductivity. A wide range of activities can affect conductivity levels of a stream, including wastewater treatment and earth disturbances associated with construction activities or mining. Naturally occurring conductivity levels can also vary widely among different streams.
About 10 days after the suit was filed, Plaintiffs and EPA announced a settlement, in the form of a proposed Consent Decree (CD). …
April 15, 2024
Environmental Alert
(by Jean Mosites and Mackenzie Moyer)
On April 10, 2024, the U.S. Environmental Protection Agency (EPA) finalized the National Primary Drinking Water Regulation (NPDWR) Rule regulating six per- and polyfluoroalkyl substances (PFAS) under the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. This final rule establishes the first-ever nationally enforceable drinking water standards for PFAS. The final rule establishes Maximum Contaminant Level Goals (MCLGs) and Maximum Contaminant Levels (MCLs) for perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA, commonly known as GenX chemicals), and perfluorohexane sulfonic acid (PFHxS). The final rule also establishes a Hazard Index MCLG and MCL for mixtures containing two or more of PFNA, HFPO-DA, PFHxS, and perfluorobutane sulfonic acid (PFBS).
For PFOA and PFOS, the final rule sets MCLGs – non-enforceable health-based goals that represent the maximum concentration of a contaminant in drinking water at which there is no known or anticipated negative effect on a person’s health – at 0 parts per trillion (ppt). The MCLs, which are legally enforceable, are set at 4.0 ppt for PFOA and PFOS. The MCLs represent the maximum concentrations allowed in drinking water that can be delivered to users of a public water system and are informed by factors such as available treatment technologies and cost. As a change from the proposed rule, the final rule sets MCLGs and MCLs for PFNA, PFHxS, and HFPO-DA at 10 ppt.
For mixtures of two or more of PFNA, PFHxS, HFPO-DA, and PFBS, the final rule establishes a Hazard Index due to the chemicals’ likely co-occurrence. The Hazard Index is calculated by dividing the concentration of each of the four PFAS compounds by its Health-Based Water Concentration (HBWC; …
March 27, 2024
Environmental Alert
(By Joseph Schaeffer and Sloane Wildman)
On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Inhance Technologies, L.L.C. v. U.S. Environmental Protection Agency, No. 23-60620 (5th Cir. Mar. 21, 2024) that confirmed the obvious: a company that has a 40-year history of using perfluoroalkyl substances (PFAS) in its fluorination manufacturing process is not engaged in a “significant new use” under the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2697. While not preventing the U.S. Environmental Protection Agency (EPA) from regulating existing uses of PFAS under other TSCA provisions, this common-sense conclusion provides industry with much-needed clarity and predictability.
TSCA Background
TSCA was enacted in 1976 to regulate chemicals that “present an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2601. EPA may do so in one of two ways. Under TSCA § 5, EPA may regulate the use of “new chemical substance[s]” and any “significant new use” of chemical substances. 15 U.S.C. § 2604. To determine whether use of a chemical substance is a significant new use, EPA considers four factors:
(1) the projected volume of manufacturing and processing of a chemical substance; (2) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance; (3) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance; and (4) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
15 U.S.C. § 2604(a)(2). …
March 15, 2024
Environmental Alert
(by Joseph Schaeffer and Gina Buchman)
On March 1, 2024, the D.C. Circuit issued its long-awaited decision in Environmental Committee of the Florida Electric Power Coordinating Group, Inc. v. EPA, No. 15-1239 (D.C. Cir. Mar. 1, 2024), in which it vacated the majority of an Environmental Protection Agency (EPA) final agency action commonly referred to as the 2015 SSM SIP Call. The agency action required states to remove provisions in their state implementation plans (SIPs) that insulate sources from liability for excess emissions occurring during periods associated with startups, shutdowns, and malfunctions (SSM). To understand the impact of this decision, it is necessary to understand both what was at issue and what the Court did (and did not) decide.
Environmental Committee is the product of a long-simmering dispute over SSM provisions.
Under the Clean Air Act, 42 U.S.C. § 7401 et seq., states are required to adopt and submit for EPA’s approval SIPs that provide for the implementation, maintenance, and enforcement of national ambient air quality standards within their jurisdictions. 42 U.S.C. § 7410(a)(1). From the time that SIPs were first required as part of the 1970 amendments to the Clean Air Act, many states have included special provisions governing SSM events. These SSM provisions generally fall into one of four categories:
- Automatic exemption provisions excluding SSM periods from otherwise applicable emissions rules;
- Director’s discretion provisions allowing state officials to independently and conclusively determine that excess emissions during SSM periods are not violations of applicable emissions rules;
- Enforcement discretion provisions allowing state officials to bar enforcement action for excess emissions during SSM periods;
…
February 14, 2024
Environmental Alert
(by Sloane Anders Wildman and Jessica Deyoe)
On February 8, 2024, the U.S. Environmental Protection Agency (EPA) published two proposed rules to address per- and polyfluoroalkyl substances (PFAS) and other emerging contaminants under the authority of the Resource Conservation and Recovery Act (RCRA). Specifically, EPA is proposing to add nine PFAS (including their salts and structural isomers) to the list of “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261. EPA is also proposing to clarify, by regulation, that emerging contaminants – including PFAS – can be addressed under RCRA’s Corrective Action Program. Comments on the first proposed rule, Listing of Specific PFAS as Hazardous Constituents, are due April 8, 2024, and comments on the second proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, are due March 11, 2024.
EPA first announced its intent to regulate PFAS under RCRA in its 2021 PFAS Strategic Roadmap. This came as a direct response to a petition by New Mexico’s Governor Michelle Lujan Grisham requesting the EPA list PFAS as RCRA Subtitle C hazardous waste, either as a class of chemicals or as individual chemicals. Then, in November 2021, the EPA announced it would initiate rulemaking for two RCRA actions, which have now been published in the Federal Register as proposed rules more than two years later.
RCRA and the Regulation and Cleanup of Hazardous Waste
RCRA gives EPA the authority to control and regulate hazardous waste from “cradle-to-grave” under its Subtitle C regulatory framework. 42 U.S.C. §§ 6921-6934; …
February 13, 2024
Environmental Alert
(By Kevin Garber and Jessica Deyoe)
On February 2, 2024, Pennsylvania Senator Gene Yaw introduced SB 1058 to repeal the Regional Greenhouse Gas Initiative CO2 Budget Trading Program regulation that the Environmental Quality Board promulgated in 2022. Senator Yaw stated that “RGGI is wrong for Pennsylvania” and believes that Pennsylvania would be better suited by an “environmentally responsible energy policy that recognizes and champions Pennsylvania as an energy producer.” He further stated that RGGI would leave thousands of Pennsylvanians struggling to pay their utility bills and would have a detrimental impact on the reliability of the region’s electric grid.
In part, this bill comes as a response to Governor Shapiro’s appeal of a November 2023 ruling by the Pennsylvania Commonwealth Court, which held that the RGGI regulation was an unconstitutional tax and declared the rule to be void. See Bowfin KeyCon Holdings, LLC et al v. Pennsylvania Department of Environmental Protection and Pennsylvania Environmental Quality Board (No. 247 M.D. 2022). It also comes not long after members of the Pennsylvania General Assembly met with members of the Ohio General Assembly to discuss the reliability of the mid-Atlantic power grid PJM manages. PJM is the regional transmission organization that coordinates the movement of wholesale electricity in all or parts of 13 states and the District of Columbia. PJM projects 20 percent of its existing capacity will retire before 2030.
Earlier, on December 12, 2023, Senator Yaw introduced SB 832 to create an Independent Energy Office in Pennsylvania. The Office would be a nonpartisan independent agency committed to providing at least one statewide energy report to each legislative session that reviews the use of fossil fuels, renewable energy, and nuclear power to meet the Commonwealth’s energy needs and working with the General Assembly to establish a statewide energy plan. …
December 22, 2023
Environmental Alert
(By Matt Wood)
On December 14, 2023, the U.S. Environmental Protection Agency (EPA) released its Second Annual Progress Report to its 2021 PFAS Strategic Roadmap, summarizing updates on the agency’s actions and goals to address per- and polyfluoroalkyl substances, also known as PFAS. Although beyond the scope of this Alert, it is notable that many of EPA’s actions and proposed actions described below have faced opposition by various parties.
PFAS, which have garnered increased attention from state and federal regulators over the last few years, are a group of thousands of manmade chemicals that have been widely used for decades in various consumer, commercial, and industrial applications. Some of the most common PFAS applications include manufacturing water-, stain-, and heat-resistant products and as ingredients in aqueous film forming foams (AFFF) used to extinguish certain kinds of chemical fires.
The 2021 Roadmap highlights EPA’s “whole-of-agency” approach to PFAS, which, with the two Progress Reports, includes proposed actions across multiple program offices focusing on the PFAS “lifecycle,” i.e., manufacturing, processing, distribution in commerce, use, and disposal, as well as addressing PFAS in the environment. Informing EPA’s focus on the PFAS lifecycle are the 2021 Roadmap’s three central directives: (1) Research; (2) Restrict; and (3) Remediate. Some of the major highlights from the Second Progress Report include:
- In January 2023, EPA released its 15th Effluent Limitations Guidelines (ELG) Plan for setting technology-based standards to address PFAS discharges by industry. Among other things, EPA announced in the ELG Plan that it will be pursuing a rulemaking to address discharges from landfills and implementing a study of influent from Publicly Owned Treatment Works to identify industries that warrant PFAS ELGs.
…
November 7, 2023
Environmental Alert
(By Joseph Schaeffer and Jessica Deyoe)
In a final rule published in the Federal Register this Halloween, which we previewed at the time of proposal, Environmental Protection Agency (EPA) increased the reporting requirements for per-and-polyfluoroalkyl substances (PFAS) and other chemicals of special concern under the Emergency Planning and Community Right-to-Know-Act, 42 U.S.C. §§ 11001-11050 (EPCRA), and the Pollution Prevention Act, 42 U.S.C. §§ 13101-13109 (PPA). 88 Fed. Reg. 74360. EPA believes that these changes will provide regulators, industry, and the public with more insight into the presence of these chemicals. The rule will take effect on November 30, 2023, and will apply to the reporting year beginning on January 1, 2024.
EPCRA § 313 establishes a toxics release inventory (TRI) that requires certain facilities manufacturing, processing, or using chemicals above certain threshold amounts to report environmental releases and waste management activities for those chemicals on an annual basis. PPA § 6607 requires facilities to report pollution prevention and recycling data for chemicals listed on the TRI, as well. Among the chemicals listed on the TRI, EPA has designated certain chemicals as “chemicals of special concern.” See 40 C.F.R. 372.28. Chemicals of special concern are excluded from de minimis exemptions, as well as the use of simplified reporting forms and range reporting. Historically, chemicals of special concern were those that EPA had identified as persistent, bioaccumulative, and toxic.
As part of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), Congress established two methods for adding PFAS to the TRI. Section 7321(b) of the NDAA added 14 PFAS by name or Chemical Abstract Service Registry Number and other PFAS that met specified criteria. …
November 2, 2023
Environmental Alert
(by Kevin Garber and Jessica Deyoe)
On November 1, 2023, the Commonwealth Court of Pennsylvania held that the Pennsylvania Department of Environmental Protection’s CO2 Budget Trading Program Regulation is an unconstitutional tax, declared the rule to be void, and enjoined DEP from enforcing it. See Bowfin KeyCon Holdings, LLC et al v. Pennsylvania Department of Environmental Protection and Pennsylvania Environmental Quality Board (No. 247 M.D. 2022). The Regulation would have linked Pennsylvania’s cap-and-trade program to the Regional Greenhouse Gas Initiative (RGGI), which is the regional, market-based cap-and-trade program designed to reduce carbon dioxide emissions from fossil-fuel-fired electric power generators with a capacity of 25 megawatts or greater that send more than 10 percent of their annual gross generation to the electric grid.
The Court reaffirmed its earlier July 8, 2022 opinion in which it preliminarily enjoined the Regulation as an unconstitutional tax. In this November 1 decision on the merits, the Court held that the Regulation constitutes a tax imposed by DEP in violation of the Pennsylvania Constitution.
Undisputed facts of record established that only 6 percent of RGGI auction proceeds are necessary to cover the cost of administering the program and that the annual revenue anticipated from RGGI would be three times greater than the total amount allocated to DEP from the General Fund in a single year. The Court found that the money to be generated by Pennsylvania’s participation in RGGI would be “grossly disproportionate” to the costs of overseeing participation in the program and DEP’s annual needs. Relying on the Pennsylvania Supreme Court’s opinion in Flynn v. Horst, 51 A.2d 54, 60 (Pa. 1947), which found that
[n]o principle is more firmly established in the law of Pennsylvania than the principle that a revenue tax cannot be constitutionally imposed upon a business under the guise of a police regulation, and that if the amount of a ‘license fee’ is grossly disproportionate to the sum required to pay the cost of the due regulation of the business the ‘license fee’ act will be struck down,
the Commonwealth Court concluded that Pennsylvania’s participation in RGGI “may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through the Rulemaking promulgated by DEP and EQB. …
October 27, 2023
Environmental Alert
(By Jean Mosites and Ben Clapp)
Pennsylvania Department of Environmental Protection (PA DEP) Secretary Rich Negrin submitted his resignation on October 26. Negrin’s resignation is effective December 9, 2023, and he will be taking a medical leave of absence until his resignation becomes effective. Former Executive Deputy Secretary Jessica Shirley will serve as Interim Active Secretary, effective immediately. Prior to serving as Executive Deputy Secretary, Shirly held the position of PA DEP Policy Director.
Babst Calland will continue to track these developments and provide further updates as additional information becomes available. If you have any questions regarding this change of leadership at PA DEP, please contact Jean Mosites at (412) 394-6468 or jmosites@babstcalland.com, or Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com.
Click here for PDF.
October 5, 2023
Legal Intelligencer
(by Sean McGovern and Amanda Brosy)
The Shapiro administration recently released its Interim Final Environmental Justice Policy DEP ID: 015-0501-002 (“Interim Final Policy”) (http://www.depgreenport.state.pa.us/elibrary/GetFolder?FolderID=4556 (follow link to “Environmental Justice Policy.PDF”) (last visited Sept. 23, 2023)), along with a link to the latest Environmental Justice Mapping and Screening Tool (“PennEnviroScreen”) (available online at https://gis.dep.pa.gov/PennEnviroScreen/ (last visited Sept. 23, 2023)). The Policy took effect on September 16, 2023, when official notice of the interim final rulemaking was published in the Pennsylvania Bulletin. See 53 Pa. Bull. 5854 (September 16, 2023).
Pennsylvania’s Environmental Justice Policy
The Commonwealth first adopted an Environmental Justice Policy (EJ Policy) in 2004 to provide citizens in EJ communities enhanced public participation opportunities during certain DEP permit application processes. In 2018, DEP circulated a draft revised policy for public comment, but ultimately withdrew the proposed revisions in 2020 following receipt of public comments. After conducting further outreach in 2021, DEP proposed an updated policy that would refine and expand the scope of the withdrawn 2018 revisions. On March 12, 2022, DEP released a draft of the EJ Policy for public comment, and subsequently received more than 1,200 comments during the comment period. The Interim Final Policy is the latest version of the EJ Policy to have been released by DEP since the comment period closed last spring. Although DEP had previously indicated that it was working to prepare a Comment Response Document in tandem with the Interim Final Policy, it has yet to release such a Document.
Important Features of the Interim Final Policy
The Interim Final Policy will likely have a tangible impact on permitting and enforcement processes for various industries going forward. …
October 3, 2023
Environmental Alert
(by Gary Steinbauer and Gina Buchman)
On September 28, 2023, the United States Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) released a guidance memorandum entitled EPA’s Climate Enforcement and Compliance Strategy.[1] EPA is directing all of its enforcement and compliance offices to address climate change in every matter within their jurisdiction, as appropriate. This action was taken in conjunction with: President Joe Biden’s Executive Order 14008,[2] which directs all federal agencies to implement a “whole of government” approach to climate change; EPA’s overarching goal of addressing climate change issues in its FY2022-2026 Strategic Plan;[3] and EPA’s inclusion of Mitigating Climate Change as one it is six recently finalized National Enforcement and Compliance Initiatives for FY2024-2027.[4] To implement this new strategy, EPA’s enforcement and compliance programs are directed to take action in three specific areas across all enforcement and compliance activities, including criminal, civil, federal facilities, and cleanup enforcement:
- Prioritize Enforcement and Compliance Activities to Reduce Emissions of Greenhouse Gases
EPA plans to prioritize current enforcement initiatives that will reduce greenhouse gas emissions. The National Enforcement and Compliance Initiative of Mitigating Climate Change focuses on reducing methane and hydrofluorocarbons (HFCs) emissions. To reduce methane emissions, EPA is placing a greater emphasis on compliance with new source performance standards (NSPS) at oil and gas facilities and landfills. EPA plans to place a particular focus on oil and gas “super-emitter events”, which are part of a new set of requirements in the soon to be finalized NSPS Part 60 Subparts OOOOb and OOOOc. EPA will also use its enforcement authority to ensure compliance with the American Innovation and Manufacturing Act, which phases out the production and consumption of HFCs. …
September 11, 2023
Environmental Alert
(by Kip Power and Matt Wood)
At the end of August 2023, the West Virginia Department of Environmental Protection (WVDEP) began sending letters to facilities that the agency believes may be subject to new requirements to report production or use of specific per- and polyfluoroalkyl substances (PFAS). The requirements are included in the recently passed House Bill 3189, also known as the PFAS Protection Act (“the Act”), which Governor Jim Justice signed into law on March 28, 2023.
PFAS have been linked to effects on the human immune system, cardiovascular problems, and cancer. They are often referred to as “forever chemicals” because of their persistence in the environment and tendency to accumulate in people and animals over time. Broadly, the Act is intended to identify sources of PFAS that are impacting drinking water sources in West Virginia.
WVDEP’s recent form letter notifies recipients that under the Act, facilities that discharge to surface water under an applicable National Pollution Discharge Elimination System (NPDES) permit or to a Publicly Owned Treatment Works (POTW) under an industrial pretreatment program, “which manufacture or knowingly use or have used” certain PFAS in their production process since January 1, 2017, are required to report such use to WVDEP on or before December 31, 2023. Specifically, the Act requires that these facilities report any PFAS that the United States Geological Service (USGS) found in its recent study of raw water from 279 West Virginia public water systems. Under the Act, facilities are also required to report their use of other PFAS that WVDEP identifies as harmful to human health and potentially present in detectable levels in West Virginia waters. …