Category: Environmental Law

Federal Judge Limits the Reach of the WOTUS Rule

Introduction

During the Obama Administration, the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (collectively, “the Agencies”) adopted a rule amending the regulatory definition of “waters of the United States” (the “WOTUS Rule” or “Rule”).  As explained in a previous alert, the WOTUS Rule has far-reaching implications for project development and landowners across the energy, water, agricultural, construction, and transportation sectors, and it has been the subject of extensive litigation, as well as rulemaking by the Trump Administration.

On Wednesday, August 21, 2019, the United States District Court for the Southern District of Georgia ruled in Georgia v. Wheeler that the WOTUS Rule impermissibly extended the Agencies’ authority beyond the scope of the Clean Water Act (“CWA”) and failed to comply with the Administrative Procedure Act (“APA”). The Court remanded the WOTUS Rule back to the Agencies and extended its preliminary injunction of the Rule.

Background

Since its enactment, the WOTUS Rule has been the subject of many legal challenges, and it was enjoined in numerous states. Additionally, under the Trump Administration, the Agencies proposed a new rule that would have delayed the effectiveness date of the WOTUS Rule for two years (the “Suspension Rule”). As previously discussed, the Suspension Rule was the subject of a nationwide injunction in South Caroline Coastal Conservation League v. Pruitt.  A federal judge in the Western District of Washington then vacated the Suspension Rule in Puget Soundkeeper Alliance v. Wheeler.

After the vacatur of the Suspension Rule, the WOTUS Rule continued to provide fodder for litigation. To date, the WOTUS rule is enjoined in 27 states: Alaska, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, Oregon, South Dakota, Texas, Utah, West Virginia, Wyoming, and Wisconsin.  The Rule remains effective in 22 other states and the District of Columbia.

The Opinion

In Georgia v. Wheeler, the Court—relying primarily on Justice Kennedy’s concurrence in Rapanos v. United States—held that the WOTUS Rule impermissibly extended the Agencies’ jurisdiction beyond their delegated authority under the CWA.

The Court also held that the Agencies’ definitions of interstate waters, tributaries, adjacent waters, and case-by-case waters violated the CWA, and that the Rule significantly interfered with lands and waters that were traditionally under state authority without clear congressional intent.

Additionally, the Court determined that the Rule failed to comply with the APA both procedurally and substantively. These topics are further discussed below.

Definition of Interstate Waters

The Court found that the definition of interstate waters, which considers all interstate waters to be a “water of the United States” irrespective of navigability, disregarded the Supreme Court’s ruling in Rapanos. In particular, the Court found that WOTUS reads the term “navigability” out of the CWA. As such, under the WOTUS Rule, a non-navigable interstate water with no significant nexus to a “water of the United States” would still be regulated. According to the Court, that result extends beyond the Agencies’ authority under the CWA.

Definition of Tributaries

The Court also concluded that the Rule’s definition of “tributaries” was over-inclusive because it used the presence of an ordinary high water mark (“OHWM”) and bed and banks as physical indicators of volume sufficient to create a regulated “tributary.”  The Court took particular issue with provisions in the WOTUS Rule discussing situations in which these physical indicators are “absent in the field,” but are nevertheless determined to be present by “other appropriate means,” such as “lake and stream gage data, elevation data, spillway height, historic water flow records, flood predictions, statistical evidence, the use of reference conditions, or through . . . remote sensing and desktop tools.”  The Court found this approach inconsistent with Justice Kennedy’s concurrence, noting that “the physical indicators that the Agencies assert provide evidence of sufficient volume and flow to adhere to Justice Kennedy’s significant-nexus test need not actually be physically present in a geographic area so long as computer programs can decipher that they exist and need not presently exist so long as those programs can conclude that they have existed at sometime in the past.”

The Court was also troubled by the application of the “tributaries” definition in the Arid West, citing evidence that the physical indicators of a tributary often appear around water bodies in the Arid West, even when they are wholly isolated from navigable waters. The Court found that the definition of tributaries could inadvertently regulate dry areas that may contain attributes of an OWHM and a bed and bank due to an extreme weather event—a result that Justice Kennedy’s concurrence in Rapanos sought to avoid. Accordingly, Court concluded that the “tributaries” definition extended too far.

Definition of Adjacent Waters

According to the Court, the definition of “adjacent waters” clearly conflicted with Justice Kennedy’s opinion in Rapanos by erroneously including waters adjacent to non-navigable tributaries. The Court recognized that, while adjacency is a permissible factor to consider when determining jurisdiction under the CWA, that factor must still be subject to Kennedy’s significant-nexus test.  The Court reasoned that the definition impermissibly extended jurisdiction over isolated and inconsequential waters.

Case-by-Case Waters

The Court presumed that the case-by-case category was the Agencies’ attempt to implement Justice Kennedy’s significant-nexus test. Because the Agencies relied on impermissible definitions of “interstate waters” and “tributaries” in formulating their criteria for the case-by-case category of waters, the criteria were also invalid to the extent they were the logical outgrowth of these definitions. Because the definitions of “interstate waters” and “tributaries” were already overbroad, the Agencies could not base case-by-case category waters of those definitions, as they too would impermissibly expand federal jurisdiction. Notably, the Court concluded that the Agencies’ reliance on erroneous definitions of “tributaries” and “interstate waters” was the only error in the WOTUS Rule’s case-by-case category under the CWA.

The WOTUS Rule Substantially Interferes with Traditional State Power

The Court also found that the Rule substantially encroached on traditional state power. Recognizing that the CWA permits the federal government to regulate waters in order to protect the biological and physical integrity of the Nation’s waters, the Court also emphasized the Congressional policy in the CWA stating that states should retain primary responsibility over land and water resources. The Court found that the WOTUS Rule as written would result in the federal government regulating immense stretches of intrastate land not contemplated by that CWA.  To support this finding, the Court cited statements made by the Agencies under the Trump Administration in a recently-proposed rule to rescind the WOTUS Rule that the WOTUS Rule “may have altered the balance of authorities between the federal and State governments, contrary to the agencies’ [prior] statements,” and to statistics suggesting the WOTUS rule was estimated to increase the scope of federal jurisdiction over waters by at least two percent — an increase the Court characterized as “a substantial intrusion into lands and waters traditionally left to state authority.” According to the Court, this significant increase in jurisdiction improperly stripped states of their traditional authority to regulate these types of lands and waters.

The Rule failed to comply with APA and was arbitrary and capricious

The Court found that the rule violated the APA in two ways: (1) the final Rule was not the logical outgrowth of the Agencies’ previously-proposed version of the Rule; and, (2) there were parts of the Rule that were arbitrary and capricious. The Rule failed to be the logical outgrowth of the Agencies’ proposed rule for three reasons. First, while the proposed Rule did not include distance limitations when defining “neighboring waters,” the final Rule did. Second, the proposed Rule similarly did not include distance limitations for adjacent waters in the case-by-case categories, while the final Rule did. Lastly, the proposed Rule did not contain any explicit farming exemption, but the final Rule contained a farming exemption for adjacent waters. The Court agreed with Plaintiffs’ argument that, had they known that there was going to be a farming exemption for adjacent waters, they would have also commented that there should be a farming exemption for tributaries.

The Court also determined that portions of the Rule were arbitrary and capricious. The Court found that the Agencies’ inclusion of a farming exemption for adjacent waters but not tributaries was arbitrary and capricious because it failed to treat similar cases in a similar manner without justification. The Court also found that the Agencies’ decision to use FEMA 100-year floodplain maps to define adjacent and case-by-case waters was arbitrary because of the inaccuracies of outdated flood maps, and because the Agencies failed to sufficiently explain why the 100-year floodplain was the proper limit. Lastly, the Agencies’ use of a distance limitation for adjacent waters was arbitrary because the Agencies only gave broad, conclusory reasons why the limit was selected and failed to explain their decision.

Practical Implications

Georgia v. Wheeler represents yet another federal court to examine the merits of the WOTUS Rule and to find it exceeding the Agencies’ statutory authority under the CWA and violating provisions of the APA.  The Court did not vacate the rule, but simply remanded it back to the Agencies, and therefore the Rule remains effective where not enjoined. This case continues the patchwork implementation of the WOTUS Rule, which is now enjoined in 27 states, but is still effective in 22 other states and the District of Columbia.

This patchwork situation may not last long, as appeals will likely be filed challenging the Georgia v. Wheeler decision and other decisions enjoining or declining to enjoin the WOTUS Rule. Additionally, the Agencies under the Trump Administration are expected in the near future to publish a final version of their proposed new WOTUS Rule, which is also very likely to face legal challenges.

As a result on the ongoing litigation and rulemaking processes, the regulated community is unlikely to see true certainty on the question of the geographic scope of the CWA until Congress takes action to clarify its scope or the Supreme Court issues a new substantive decision addressing this issue.

© 2019 Van Ness Feldman LLP

NIEHS-Funded Research Finds that Graphene Shield Shows Promise in Blocking Mosquito Bites

On August 26, 2019, the National Institute of Environmental Health Sciences (NIEHS) announced that the results of an NIEHS-funded study show that graphene could provide alternatives to chemicals in insect repellant and protective clothing.  The study, “Mosquito Bite Prevention through Graphene Barrier Layers,” was published in the Proceedings of the National Academy of Sciences.

According to the abstract, the researchers hypothesized that graphene films may provide mosquito bite protection for light, fiber-based fabrics.  The researchers investigated the fundamental interactions between graphene-based films and the mosquito species Aedes aegypti through a combination of live mosquito experiments, needle penetration force measurements, and mathematical modeling of mechanical puncture phenomena.  The abstract states that “[t]he results show that graphene or graphene oxide nanosheet films in the dry state are highly effective at suppressing mosquito biting behavior on live human skin.  Surprisingly, behavioral assays indicate that the primary mechanism is not mechanical puncture resistance, but rather interference with host chemosensing.”

The researchers propose that the interference is “a molecular barrier effect that prevents Aedes from detecting skin-associated molecular attractants trapped beneath the graphene films and thus prevents the initiation of biting behavior.”  According to the abstract, placing water or human sweat on the external film surface circumvents the molecular barrier effect.  In this scenario, the abstract states, “pristine graphene films continue to protect through puncture resistance — a mechanical barrier effect — while graphene oxide films absorb the water and convert to mechanically soft hydrogels that become nonprotective.”

©2019 Bergeson & Campbell, P.C.
This article was written by Lynn L. Bergeson and Carla N. Hutton of Bergeson & Campbell, P.C.
For more environmental research, see the National Law Review Environmental, Energy & Resources law page.

Zero Waste Act Introduced By U.S. Representative Omar

On July 25, 2019, U.S. Representative Ilhan Omar (D-MN) introduced the Zero Waste Act, which intends to create a federal grant program to invest in solutions that address waste. The bill, if passed, will go towards recycling infrastructure or the creation of partnerships with local businesses focused on waste reduction. Representative Omar believes the bill will not only create jobs, but also reduce greenhouse gas (GHG) emissions, grow domestic manufacturing, clean waterways, save energy, ensure safety from health hazards, and grow the U.S. economy.
Omar’s bill has been endorsed by several organizations, including the City of Minneapolis, Eureka Recycling, Climate Generation, and Surfrider Foundation, among others. Presenting this bill through the lens that waste is an environmental justice issue, Representative Omar stated that “[a]ddressing the waste crisis is critical to preventing further damage to our climate—it is integral to racial justice and a clean, equitable future.” At a time where climate change debates have been of high interest to the U.S. population, in particular as the presidential candidate debates continue, it will be interesting to see whether this bill is passed. The full text of the bill can be accessed here.
©2019 Bergeson & Campbell, P.C.
For more environmental legislation see the Environmental, Energy & Resources page on the National Law Review.

Asbestos Receiving Renewed Attention in Light of Additional US EPA Assessments under TSCA and Potential Ban by Congress

Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress.  In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance.

On April 25, 2019, US EPA issued a final Significant New Use Rule (SNUR) under Section 5 of TSCA to prevent certain discontinued uses of asbestos from re-entering the marketplace without a review by EPA.  The rule essentially restricts manufacturing, importing or processing of asbestos for certain target uses that are neither ongoing, nor already prohibited under TSCA.

The SNUR covers a number of target uses for which US EPA “has found no information” indicating that they are ongoing: adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; cement products; extruded sealant tape and other tape; filler for acetylene cylinders; certain friction materials; high-grade electrical paper; millboard; missile liner; packings; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; woven products; any other building material; and “any other use of asbestos that is neither ongoing nor already prohibited under TSCA.”  While the SNUR does not actually prohibit these uses, none of the uses may return to the marketplace without EPA review of their potential risks to health and the environment.   A party must submit a “significant new use notice” to US EPA at least 90 days prior to commencing manufacturing, importing or processing of asbestos for such uses.

While the Rule effectively expands the number of restricted uses, the SNUR has raised concerns as it essentially removes the uses from US EPA’s pending TSCA risk evaluation of asbestos, which is being performed pursuant to EPA’s December 2016 listing of substances under Section 6(b) of TSCA for which a final risk assessment is due in December 2019.

Meanwhile, Congress is considering a ban on all uses of asbestos (which is already banned in more than 60 countries).  Most recently on May 8, 2019, the House Energy and Commerce Committee’s environmental panel held a hearing on H.R. 1603 (the “Alan Reinstein Ban Asbestos Now Act of 2019” introduced on March 7, 2019).  The Bill seeks to amend TSCA to require US EPA to ban importation and use of asbestos in the US within one year of enactment, broaden EPA’s definition of asbestos to include additional fiber types, and also require that EPA and the Departments of Health and Human Services and Labor assess and report to Congress regarding existing “legacy” asbestos in residential, commercial, industrial, public, and school buildings to determine quantity and risk.

Although there is reportedly openness to a bipartisan compromise on the Democratic-sponsored bill, concerns have been raised as to its application, including the effect upon the chlorine industry and that it may hamper the industry’s ability to manufacture chlorine for public water supply use and healthcare facility sanitization.  For instance, on May 8, 2019, the American Water Works Association submitted comments to the Committee noting that “more than forty percent of the chlorine supply in the United States is dependent on production methods that rely on asbestos.” Further, the relatively short 12-month transition period has been cited as another concern, as well as the associated costs.

While US EPA’s TSCA risk evaluation remains ongoing through the end of 2019 (and possibly beyond) and Congress considers the ban proposed in H.R. 1603 in committee and markup, asbestos will continue to received increased attention.  Industries that deal with asbestos-containing materials would be advised to consult with technical and legal experts to consider the implications of these measures, as well as look for additional opportunities to advocate its position to decision makers as these measures are considered and finalized.

 

© Copyright 2019 Squire Patton Boggs (US) LLP
Read more on Environmental & EPA issues on the National Law Review Environmental, Energy & Resources page.

FWS Proposes New Conservation Measures in Advance of Potential Monarch Butterfly Listing

The Monarch Butterfly is a species of concern, but not currently “listed” as a threatened or endangered species under the Endangered Species Act. In advance of the potential, and some would say likely, listing of the Monarch Butterfly, the U.S. Fish and Wildlife Service (“FWS”) has published for public comment a program it hopes will attract landowners and developers in the butterfly’s anticipated habitat who wish to avoid future regulatory concerns related to the eventual listing of the butterfly. The program is available for public comments until June 14, 2019. More information on the program can be found here.

If accepted, non-federal landowners can voluntarily agree to undertake land management activities to support the conservation of the butterfly in exchange for assurances that no additional conservation measures or land, water, or resource use restrictions will be imposed under the Endangered Species Act. Benefits of this voluntary program include incidental take authorization should the butterfly become a listed species and positive public relations.

Examples of the proposed conservation measures include:

  1. Establishing and using native seed mixes containing a diversity of wildflowers including milk weed,

  2. Minimizing use of grazing in monarch habitat during peak breeding and migration periods,

  3. Removing woody plants in densely covered shrub areas and invasive plant species to promote grassland habitats,

  4. Sustaining idle lands with suitable habitat, and

  5. Using conservation mowing to enhance floral resources and habitat.

Please note the agreement includes activities supporting the operations of existing rights of ways and associated lands but not the construction of new pipelines.

 

© Steptoe & Johnson PLLC. All Rights Reserved.
This post was written by Laura M. Goldfarb of Steptoe & Johnson PLLC.
Read more Environmental news on our environmental type of law page.

EPA Issues New Emergency Response Requirements for Community Water Systems

On March 27, 2019,  The Environmental Protection Agency (EPA) published the Federal Register Notice for New Risk Assessments and Emergency Response Plans for Community Water Systems describing the requirements and deadlines for community (drinking) water systems to develop or update risk and resilience assessments (RRAs) and emergency response plans (ERPs) under  America’s Water Infrastructure Act (AWIA) which was signed into law on October 23, 2018 and amends the Safe Drinking Water Act (SDWA).   Additionally, as described below, preparation of an ERP will enable owners or operators of community water systems to apply for grants from EPA for fiscal years 2020 and 2021.

Covered water systems.  Community water systems that serve more than 3,300 people are covered by these requirements. EPA interprets the population served to mean all persons served by the system directly or indirectly, including the population served by consecutive water systems, such as wholesalers.

Deadlines.  Each covered Community Water System completing an RRA and ERP must send certifications of completion by the dates listed below, and then review for necessary updates every 5 years thereafter:

Population Served by the Community Water System

Risk and Resilience Assessment (RRA) Certification

Emergency Response Plan (ERP)

The dates below are 6 months from the date of the RRA certification, based on a utility submitting a risk assessment on the final due date. Depending on actual RRA certification, ERP due dates could be sooner.

≥100,000

March 31, 2020

September 30, 2020

50,000-99,999

December 31, 2020

June 30, 2021

3,301-49,999

June 30, 2021

December 30, 2021

Risk and Resilience Assessment Requirements.  Each covered community water system must assess the risks to, and resilience of, its system including:

  • risk to the system from malevolent acts and natural hazards
  • resilience of the pipes and constructed conveyances, physical barriers, source water, water collection and intake, pretreatment, treatment, storage and distribution facilities;
  • electronic, computer, or other automated systems (including the security of such systems) which are utilized by the system;
  • monitoring practices of the system;
  • financial infrastructure of the system;
  • use, storage, or handling of various chemicals by the system; and
  • operation and maintenance of the system.

Emergency Response Plan Requirements (ERP). No later than six months after certifying completion of its risk and resilience assessment, each system must prepare or revise, where necessary, an emergency response plan that incorporates the findings of the assessment.  The ERP must include:

  • strategies and resources to improve the resilience of the system, including the physical security and cybersecurity of the system;
  • plans and procedures that can be implemented, and identification of equipment that can be utilized, in the event of a malevolent act or natural hazard that threatens the ability of the community water system to deliver safe drinking water;
  • actions, procedures, and equipment which can obviate or significantly lessen the impact of a malevolent act or natural hazard on the public health,  safety, and supply of drinking water provided to communities and individuals, including the development of alternative source water options, relocation of water intakes, and construction of flood protection barriers; and
  • strategies that can be used to aid in the detection of malevolent acts or natural hazards that threaten the security or resilience of the system.

The Federal Register Notice indicates that EPA is not requiring water systems to use any designated standards or methods to complete RRAs or ERPs, provided all of the requirements of the SDWA and AWIA are met.  AWIA already defines resilience and natural hazards. EPA will provide additional tools to foster compliance with its provisions and baseline information regarding malevolent acts no later than August 1, 2019.  With respect to the latter, it is anticipated that the agency will include consideration of acts that may (1) substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water; or (2) otherwise present significant public health or economic concerns to the community served by the system.

Potential Impacts & Next Steps.  Preparation of an ERP will enable the owners or operators of community water systems to apply for grants under the Drinking Water Infrastructure Risk and Resilience Program, under which EPA may award grants in fiscal years 2020 and 2021.  If consistent with its ERP, a community water system may apply for grant funding for projects that increase resilience, such as:

  • Purchase and installation of equipment for detection of drinking water contaminants or malevolent acts;
  • Purchase and installation of fencing, gating, lighting, or security cameras;
  • Tamper-proofing of manhole covers, fire hydrants, and valve boxes;
  • Purchase and installation of improved treatment technologies and equipment to improve the resilience of the system;
  • Improvements to electronic, computer, financial, or other automated systems and remote systems;
  • Participation in training programs, and the purchase of training manuals and guidance materials relating to security and resilience;
  • Improvements in the use, storage, or handling of chemicals by the community water system;
  • Security screening of employees or contractor support services;
  • Equipment necessary to support emergency power or water supply, including standby and mobile sources; and
  • Development of alternative source water options, relocation of water intakes, and construction of flood protection barriers.

The EPA is currently developing a comprehensive training schedule, which will include both classroom and webinar options.

 

© 2019 Van Ness Feldman LLP.
Read more water infrastructure news on our environmental type of law page.

State Water Board Unveils Aggressive Plan to Issue Investigative Orders for PFAS

Environmental & Natural Resources

  • Within the month, the State Board will issue orders requiring investigation of potential PFAS contamination, a widely used class of chemicals, at more than a thousand California facilities.
  • Phase I targets airports and landfills.
  • Phases II & III, to be implemented later this year, will include refineries, bulk terminals, fire training facilities, wildfire areas, manufacturers, wastewater plants, and domestic wells.

On March 6, the California State Water Resources Control Board announced it will soon issue orders to owners and operators of more than a thousand facilities in California requiring environmental investigation and sampling for per- and polyfluoroalkyl substances, known by the acronym PFAS. As “Item 10” in a four-hour meeting providing updates on state and federal programs addressing PFAS, Darrin Polhemus, Deputy Director of the State Board’s Division of Drinking Water (DDW), and Shahla Farahnak, Assistant Deputy Director of the Division of Water Quality (DWQ), unveiled an aggressive “Phased Investigation Plan.”

ABOUT PFAS

PFAS are a class of chemicals widely used for decades in many consumer products for their grease- and stain-resistant properties, including nonstick products, carpeting, furniture, and makeup. PFAS were also commonly essential ingredients of firefighting foams used at airports and other locations where large quantities of flammable fuels were present. PFAS compounds are potentially toxic at extremely low levels. In the last several years, public scrutiny of PFAS has accelerated as their environmental prevalence has become better understood. Testing performed in connection with the U. S. Environmental Protection Agency’s (USEPA’s) third “Unregulated Contaminant Monitoring Rule” (UCMR3) identified 133 PFAS detections in California drinking water systems, and follow-up testing resulted in nearly 300 more detections.

PHASE I ORDERS IMMINENT

In Phase I of its investigation plan, the State Board will issue orders to 31 airports it believes to have used PFAS-containing aqueous firefighting foam, and 252 landfills it believes to have accepted materials that contain PFAS. The State Board will also issue investigative orders to operators of 578 drinking water wells within a two-mile radius of one of the airports, and 353 drinking water wells within a one-mile radius of the landfills. It will also issue orders for 389 drinking water sources within a mile radius of PFAS impacts identified in the UCMR3 testing.

State Board staff have already drafted the Phase I orders and expect to issue them by the end of this month, if not sooner.

PHASES II & III EXPECTED SUMMER/FALL 2019

The State Board is still formulating the next phases, but staff said “high priority” targets in Phase II will be refineries, bulk terminals, and non-airport fire training areas. Phase II would also include manufacturers of PFAS, if any. (Presently, the Board does not believe there are any in California, but it intends to verify that understanding as part of the investigation.) In the second phase, the State Board will also test storm water in areas of the massive 2017 and 2018 California wildfires to evaluate whether burning of consumer products in those fires resulted in PFAS releases to the environment.

Phase III will focus on so-called “secondary manufacturers” – those that use PFAS in their products or processes. Board staff specifically mentioned plating facilities as potential targets. The third phase will also include wastewater treatment and pre-treatment plants, and domestic wells.

State Board staff expects to implement Phases II and III in the summer and fall of this year.

TIMELINE AND STRATEGIC CONSIDERATIONS FOR RESPONDING TO ORDERS

If you get an order, you will need to be prepared to respond quickly. Targeted source facilities will receive an order issued by the State Board under the authority of California Water Code section 13267. These orders will require businesses to respond to a questionnaire regarding the historical use of PFAS-containing products within 30 days, and to submit work plans for conducting testing within 60 days. After the work plans are accepted, businesses will have 90 days to perform the testing and submit the results.

Source: Presentation at State Water Resources Control Board Meeting, March 6, 2019, Water Boards PFAS Phased Investigation Approach
https://www.waterboards.ca.gov/pfas/docs/7_investigation_plan.pdf

Regulated entities should use great care in responding to these orders. Failure to comply may be punished by fines ranging from $5,000 to $25,000 per day per violation. Under the statute, the burden, including costs, of the ordered reporting must “bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports” and responding parties may take steps to protect their trade secrets from public disclosure as a result of required reporting. Moreover, appropriate execution of the required testing is critical. Because PFAS are so widely used in consumer products, there are myriad opportunities for cross-contamination that could result in false positives if exacting sampling protocols are not utilized.

Targeted water system operators will receive an order from DDW under California Health & Safety Code section 116400. Those orders will require periodic PFAS analyses, likely on a quarterly basis, unless DDW determines that a different schedule is reasonable.

FEDERAL PFAS ACTION PLAN AND NEXT STEPS IN CALIFORNIA

California’s Phased Investigation Plan comes on the heels of the February 14 release of the USEPA’s PFAS Action Plan, identifying short- and long-term actions USEPA plans to take over the coming years. USEPA said it will set federally enforceable Maximum Contaminant Levels (MCLs) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – two members of the PFAS family, designate those chemicals as hazardous substances under the Superfund law, require monitoring for additional PFAS in the next UCMR, and develop interim cleanup standards for PFAS in groundwater. The Action Plan would give the federal government greater enforcement authority over PFAS and has come under fire from a number of consumer advocacy and political organizations.

The State Board, somewhat uncharacteristically, has not been on the forefront of PFAS regulation. In 2016, the USEPA published a Health Advisory Level of 70 parts per trillion (ppt) in drinking water for combined PFOA and PFOS. Then, in November 2017, New Jersey announced that it would be the first state to establish a legally enforceable MCL for PFOA, setting it at 14 ppt, the most stringent standard in the country.

California has been more measured in its response. As Allen Matkins previously reported, in November 2017, the state added PFOA and PFOS to the Proposition 65 list of chemicals “known to the state” to cause reproductive toxicity, and in July of last year DDW set “notification levels” of 13 ppt for PFOS and 14 ppt for PFOA, and a “response level” of 70 ppt for combined PFOA and PFOS. Yet, to date, there is no enforceable drinking water or cleanup standard for PFAS in California, and Deputy Director Polhemus’ comments at the March 6 meeting made clear that none is imminent. The State Board and others are struggling with how best to address the whole class of thousands of PFAS chemicals without undertaking the massive regulatory effort required to set MCLs for each individual chemical in the family. Given this challenge, DDW has not requested a Public Health Goal (PHG) for any PFAS chemicals, and Deputy Director Polhemus said any such PHG is still at least a couple of years off, with potential MCLs at least a few years behind that.

The release of DDW’s Phased Investigation Plan, however, is the first major step in California’s systematic approach to investigating the release of PFAS to the environment, and signals an imminent new regulatory regime.

More information on the State Board’s March 6, 2019 meeting is available here.

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP
This post was written by Kamran Javandel and Vaneeta Chintamaneni of Allen Matkins.

Municipal utilities need to be concerned with PFAS

Municipalities face increasing challenges under the growing regulatory focus of the United States Environmental Protection Agency (EPA) and state environmental agencies on the emerging contaminants Per-and Polyfluoroalkyl Substances, known by the acronym “PFAS.” This newsletter will describe some of those challenges for municipalities and the announcement  and the importance of following good protocol when sampling and analyzing for these compounds.

What are PFASs and why are they considered harmful?

PFASs are a group of chemicals that have been used since the middle of the 20th century in many industrial applications and consumer products including stain proofing for water proof carpeting, clothing, upholstery, leather treatment, food paper wrappings, firefighting foams (commonly used at military bases, airports, fire stations and refineries), car washing cleaners, metal plating and non-stick cookware (such as Teflon). Some research has suggested probable links between exposure to PFAS and diagnosed high cholesterol, ulcerative colitis, thyroid disease, testicular and kidney cancers and pregnancy induced hypertension. As a result, the family of PFAS chemicals have been classified by EPA as an “emerging contaminant.”

EPA has set a lifetime health advisory (LTHA) level (the level below which no harm is expected) for two PFASs in drinking water: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The PFOA/PFOS LTHA level is 70 parts/trillion, which is equivalent to about 3 ½ drops of water in an Olympic swimming pool. The low threshold is a signal of the risk potential for this emerging contaminant as well as the difficulty in confidently determining the concentrations of PFOA/PFOS in water samples and the challenges in undertaking cost effective remediation when PFASs are discovered.

PFAS concerns for municipal utilities

In November 2018, President Trump signed the America’s Water Infrastructure Act of 2018 (AWIA). This legislation will require smaller communities to test their water systems for chemicals like PFOA and PFOS. Prior to the signing of this AWIA legislation, only water systems with more than 10,000 community customers were required to test for PFAS chemicals. Under this new legislation, smaller water utility communities who serve between 3,000 – 10,000 customers must also begin testing for these emerging contaminants.

In addition, on Feb. 4, 2019, the EPA announced its PFAS Action Plan. See here. In particular, EPA has announced its intention to develop a maximum contaminant level for PFOS and PFOA, including the LTHA reference point of 70 parts/trillion as a federally enforceable drinking water standard, under the Safe Drinking Water Act.

In a memorandum dated Feb. 20, 2018, the state of Michigan announced a monitoring proposal for waste water treatment plants that accept potential sources of PFAS to begin testing their facilities for PFAS containing chemicals. Michigan also has begun testing leachate from landfill facilities that accept municipal solid waste. The results of these preliminary tests have recorded the presence of PFAS in leachate generated by many of these landfills. Since leachate is commonly sent to wastewater treatment facilities for treatment, this discovery of PFAS in leachate could raise additional concerns for municipal treatment facilities, particularly since PFAS compounds are not specifically addressed in municipal wastewater treatment. The concern is that the PFAS is eluding treatment and is present in the effluent or other waste streams, or is adsorbing to the biosolids and sludges generated by the WWTP, which are thereafter frequently land spread with uncertain impacts.

An additional concern for municipalities, separate from wastewater, relates to historic (and potentially closed) waste landfills owned and operated by municipalities. Certain studies suggest that discarded carpet (such as Stainmaster products) and clothing (such as products treated with Scotchgard) are leading sources of PFAS contamination, including the leachate, in landfills.

Finally, the Wisconsin Department of Natural Resources (WDNR) has convened a PFAS Technical Advisory Group to discuss a broad range of PFAS concerns in Wisconsin. The first quarterly meeting of the Advisory Group occurred on Feb. 22, 2019. More information on the PFAS Technical Advisory Group can be found here.

All of these developments suggest that municipal utilities should be concerned about the legal implications of detections of PFAS. Given the extraordinarily low health advisory standards that apply to this class of chemicals (parts per trillion), these municipal utilities must take great care in deciding when to test for these materials and, if a decision is made to test, the quality assurance and quality control measures that should be taken to ensure reliable results.

Copyright © 2019 Godfrey & Kahn S.C.

 

This post was written by Arthur J. Harrington Daniel C.W. Narvey and Edward (Ned) B. Witte of Godfrey & Kahn S.C.

Read more on PFAS regulation on the Environmental type of law page.

U.S.EPA Announces National “PFAS Action Plan”

The United States Environmental Protection Agency (U.S.EPA) acting Administrator, Andrew Wheeler, held a press conference at EPA Region III in Horsham, Pennsylvania on Feb. 14, 2019, to announce the U.S.EPA’s PFAS Action Plan. Wheeler indicated that similar announcements of and press conferences relating to the PFAS Action Plan were being held simultaneously in each of the U.S.EPA’s ten regional offices, underlying the importance of the announcement. Wheeler stated that the Agency’s plan was the most comprehensive cross-agency plan introduced by the U.S.EPA.

Acting Administrator Wheeler highlighted five key elements of the PFAS Action Plan:

  1. U.S.EPA has initiated actions to develop a Maximum Contaminant Level, or MCL, for PFAS, and specifically for two PFAS compounds, PFOS and PFOA, by the end of 2019. Wheeler stated that this would be the first substance to have an MCL established since the Safe Drinking Water Act was amended in 1996. Wheeler added that the U.S.EPA maintains that the 70 parts per trillion (ppt) standard is a federally enforceable groundwater standard, despite misconceptions to the contrary.

  2. U.S.EPA will continue to pursue enforcement actions utilizing the existing Health Advisory Level for PFAS of 70 ppt or 70 nanograms per liter.

  3. U.S.EPA will expand monitoring and data gathering related to PFAS, including adding PFAS to the toxics release inventory, which should generate additional information on the extent of PFAS in the industry and in the environment. Wheeler indicated that U.S.EPA is using enhanced mapping tools to identify where and in what communities PFAS is in the groundwater and in the environment.

  4. U.S.EPA will expand research into the impacts of PFAS on human health and the environment, studying fate and transport issues associated with PFAS. Wheeler stated that U.S.EPA wants to “close the gap” on the science related to PFAS, including the more recently manufactured perfluourinated compound known as “GenX”,

  5. U.S.EPA will develop a “risk communication toolbox” that will provide information to the public and the regulated community more clearly.

Copyright © 2019 Godfrey & Kahn S.C.
For more Environmental News, check out the National Law Review’s Environmental Type of Law page.

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due to the shutdown. On February 6, 2019, EPA announced that the hearing will now be held on February 27 and 28, 2019.   The Office of the Federal Register has not yet published the proposed rule, which will start the clock on the 60-day comment period.

Because it determines the scope of the Clean Water Act, the definition of “waters of the United States” has been a hot-button issue since it was amended, and significantly broadened, by the Obama administration in mid-2015.  The 2015 rule was challenged by 31 states and numerous other stakeholders in multiple lawsuits. In October 2015, the Sixth Circuit issued a nationwide stay of the rule. The nationwide stay was lifted when the US Supreme Court determined on January 13, 2017, that review of the rule falls within the jurisdiction of the district courts.   Although the nationwide stay is no longer in effect, decisions by the US District Courts for the Districts of North Dakota, Southern District of Georgia, and Southern District of Texas, preliminarily enjoining the 2015 rule in 28 states remain in effect. Thus, the Obama-era rule is in effect in only 22 states, the District of Columbia, and US territories.

In an effort to eliminate or narrow the Obama-era rule and reestablish a consistent nationwide rule, on December 11, 2018, the US EPA and the Army signed a newly proposed rule revising the WOTUS definition. The proposed rule is part of the agencies’ two-step plan to remove and replace the 2015 rule, which the agencies believe exceeds US EPA’s statutory authority. The first step, a rule which suspended the application of the 2015 rule, was enjoined and vacated by two district courts. Despite this roadblock, the agencies moved forward with step two and submitted the new proposed definition rule to the Office of the Federal Register. However, due to the shutdown, it has not yet been published. The 60-day comment period for the rule will begin on the date of publication.

Under the proposed rule “waters of the United States” encompasses “traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.” Importantly, the agencies propose to eliminate the case-by-case application of the significant nexus test, which under the 2015 rule extends the definition of WOTUS to water, including wetlands, that “significantly affects the chemical, physical, or biological integrity of a water.” The agencies propose instead “the establishment of clear categories of jurisdictional waters.”

The new WOTUS definition would also exclude from regulation some tributaries and waters adjacent to jurisdictional waters. The 2015 rule extends to adjacent waters that are bordering, contiguous or neighboring a jurisdictional water, which broadly encompasses any water within 100 feet of a jurisdictional water or water located within the 100-year floodplain of a jurisdictional water. By contrast, the proposed rule includes only adjacent wetlands that “abut or have a direct hydrological surface connection” to a water. Under the 2015 Obama-era rule, a tributary is a water that contributes flow to a jurisdictional water. The proposed rule eliminates ephemeral flows from being considered a tributary, requiring a water that contributes at least “perennial or intermittent flow.” Given these and other significant differences between the two rules, once published, the proposed rule is certain to draw intense debate over the proper reach of the Clean Water Act.

US EPA is not alone in experiencing delays, as the federal rulemaking process ground to a halt during the shutdown. The Office of the Federal Register (OFR) issued “Government Shutdown FAQs,” stating that in an appropriations lapse the OFR may publish documents from unfunded agencies “directly related to the performance of governmental functions necessary to address imminent threats to safety of human life or protection of property.”   And, in the case of a partial shutdown, where some agencies are funded, the OFR may publish documents from funded agencies “if delaying publication until the end of the appropriations lapse would prevent or significantly damage the execution of funded functions at the agency.”

 

© Copyright 2019 Squire Patton Boggs (US) LLP
This post was written by Weslynn P. Reed of Squire Patton Boggs (US) LLP.
For more environmental legislative and regulatory news check out the National Law Review’s Environmental Type of Law Page.