Chemical Industry Regulatory Update – January 2020: PFAS Regulation and Sampling Continue to Heat Up

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Thompson Hine LLP
Joel D. Eagle

January 9, 2020

An update to this publication was released on January 21, 2020.

It is a question we’ve heard so much recently: Are per- and polyfluoroalkyl substances (PFAS) really everywhere? The answer is certainly “yes” if measured by the flurry of recent federal and state “action plans” and proposed statutory and regulatory changes (including the proposed federal “PFAS Action Act of 2019” discussed below); Hollywood movies (“Dark Waters”); streaming documentaries (Netflix’s “The Devil We Know”); and a nearly constant flood of media coverage about PFAS. If the metric is the confirmed presence of PFAS in the environment through sampling, then the jury is still out. But extensive ongoing and planned nationwide groundwater and drinking water supply system sampling and investigations at known or suspected contaminated sites, will help answer whether PFAS are really everywhere.

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Trump Track: Revision of NEPA Regulations to Speed Environmental Review

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Davis Wright Tremaine LLP
Gerald George

January 10, 2020

On January 8, 2020, the Trump Administration proposed streamlining the National Environmental Policy Act (NEPA) regulations for evaluation of the environmental impacts of major projects, in part by removing the existing requirement to consider “indirect,” “direct,” and “cumulative effects.” Instead, the proposal narrows the definition of “effects” to be evaluated to include only those that are “reasonably foreseeable” and having “a reasonably close causal relationship to the proposed action or alternatives.”

After publication in the Federal Register, the proposed regulations will be open for public comment for sixty days. Given the expected scale of response, publication of the final regulations is unlikely before fall 2020, and the new regulations will almost inevitably face court challenges arguing that the narrowing is inconsistent with the statute itself.

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Insurance Coverage May Pay for PFAS Related Environmental Investigations

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Loeb & Loeb LL
Albert M. Cohen

January 17. 2020

Over the past few years, PFAS (per- and polyfluoroalkyl substances) have come under increased scrutiny by a variety of regulatory agencies.

In March 2019, the California State Water Board (Water Board) initiated a statewide effort to assess the scope of contamination by PFAS in water systems and groundwater. It issued nearly 14,000 investigatory orders to various entities, including public water systems within two miles of airports and one mile of landfills. The Water Board also issued orders to hundreds of chrome-plating operations throughout the state, requiring them to conduct investigations to determine the presence of PFAS.

California also enacted AB 756, which authorizes the State Water Pollution Control Board to order public water systems to monitor for PFAS and to take specified actions in the event certain identified levels of PFAS are detected. As a result, additional water systems and purveyors are likely to receive orders requiring them to investigate for PFAS.

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Without “Hazardous Substance” Designation, Pennsylvania PFAS Case Against Navy Seeking Cleanup Fails

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Sidley Austin, LLP
Samuel B. Boxerman and Aaron L. Flyer

January 21, 2020

The original Blog can be accessed here:

As discussed last week, the U.S. House of Representatives recently passed a bill designating specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA). But unless and until the designation becomes federal law, the viability of PFAS-related cleanup claims under state law depend on whether the individual state has designated PFOA and PFOS as hazardous. Last week, in Giovanni, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed a case bringing a claim under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for alleged PFOA and PFOS contamination from facilities owned and operated by the U.S. Navy. The court found that the plaintiffs could not maintain their claim because these substances have not been designated as hazardous by either the federal or state government, as required by HSCA.

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PFAS Update: EPA Progress Under PFAS Action Plan

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Robinson & Cole LLP
Megan E. Baroni

December 5, 2019

Earlier this year, we wrote about EPA’s PFAS Action Plan, the agency’s blueprint for addressing contamination and protecting public health from per- and polyfluoroalkyl substances (PFAS). The PFAS Action Plan, released in February 2019, details a number of actions EPA plans to take with regard to PFAS, including time frames for implementation. EPA has been making some progress towards implementation, albeit not always on the timeline set forth in the Plan. Below are a few updates since February:

Toxics Release Inventory (TRI) Listing for Certain PFAS Compounds

Yesterday, EPA published notice that it is considering a rule to add PFAS compounds to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act. This listing would require certain industry sectors to annually report releases of these chemicals. The purpose of the TRI program is to provide the public with information, or, as EPA puts it, “A Right to Know, A Basis to Act.”

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Worth Another Look: Regional Greenhouse Gas Initiative

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Buchanan Ingersoll & Rooney PC
Lauren Orazi, Matthew T. Fine

December 2, 2019

On October 3, 2019, Governor Tom Wolf issued Executive Order – 2019-07- Commonwealth Leadership in Addressing Climate Change through Electric Sector Emissions Reductions. The executive order instructs the Pennsylvania Department of Environmental Protection (DEP) to develop a rulemaking package to “abate, control or limit carbon dioxide emissions from fossil-fuel-fired electric power generators” consistent with the Regional Greenhouse Gas Initiative (RGGI).

DEP has until July 31, 2020 to present the proposed rulemaking package to the Pennsylvania Environmental Quality Board (EQB). The EQB is a 20-member independent board that adopts DEP regulations. The Board includes 11 state agencies, five members of the Citizens Advisory Council, and four members of the Legislature.

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USMCA Vote In U.S. Congress Appears Imminent After Agreement To Change Provisions On Enforcement, Labor, Environment, And Pharmaceuticals

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Hogan Lovells
Warren H. Maruyama, Juan Francisco Torres Landa, Jonathan T. Stoel, H. Deen Kaplan, Robert D. Kyle, Ivan Zapien, Chandri Navarro, Craig Lewis, M. Jorge Yáñez V., Jared R. Wessel and Patrick de Lapérouse

December 11, 2019

Implementing legislation to enact the United States-Mexico-Canada Agreement (USMCA) is expected to be introduced as early as the week of 16 December following extensive discussions between leaders of the U.S. Congress and the U.S. Administration. House Speaker Nancy Pelosi (D-CA) and House Ways & Means Chairman Richard Neal (D-MA) announced a breakthrough in negotiations regarding certain provisions of the USMCA that was signed 30 November 2018. The two Democratic Congressional leaders cited changes to enforcement, labor, environment, and pharmaceutical chapters in the agreement in announcing the decision to bring implementing legislation to enact USMCA into U.S. law.

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New Jersey Appellate Court Blesses Municipal Court Review of Environmental Liability

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Riker Danzig Scherer Hyland & Perretti LLP
Matthew A. Karmel

December 4, 2019

Reprinted with permission.  © 2019 Riker Danzig Scherer Hyland & Perretti LLP

While most people think of municipal courts as resolving motor vehicle tickets and minor property disputes, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) has been using the municipal court system for several years to enforce violations of laws and regulations relating to the investigation and remediation of contaminated sites in New Jersey pursuant to its “Municipal Ticketing Initiative.” (See our March 9, 2017 blog post titled “NJDEP to Expand Site Remediation Municipal Ticketing Initiative.”) However, some, including Alsol Corporation, have questioned whether a municipal court has jurisdiction to decide if an entity has violated environmental laws and, if so, to impose a penalty on the entity for such violation. In its recent decision, the Appellate Division gives its blessing to the Municipal Ticketing Initiative and determines that municipal courts have the power to adjudicate liability and enforce penalties pursuant to the New Jersey Spill Compensation and Control Act and the Site Remediation Reform Act. See New Jersey Department of Environmental Protection v. Alsol Corporation, __ N.J. Super __ (App. Div. 2019).

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Changes to PADEP’s Management of Fill Policy

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Synergy Environmental, Inc.
Brian Loughnane, P.G

November 19, 2019

PADEP’s Management of Fill Policy is set to take effect on January 1, 2020 here are some thoughts from a Pennsylvania Licensed Professional Geologist

Land owners, real estate developers, excavation contractors, municipalities, environmental consultants and lenders need to take note of the upcoming changes that will be occurring with the Pennsylvania Department of Environmental Protection’s (PADEP’s) Management of Fill Policy (Fill Policy).   On November 2, 2019 PADEP published a notice within the PA Bulletin that the new Management of Fill Policy has been finalized.  The policy is effective as of January 1, 2020.  Projects and activities throughout Pennsylvania that involve earth disturbance or excavation will be impacted by the new Fill Policy.

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PFAS Solution IN (or OUT) of the NDAA?

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Greenberg Traurig LLP
Steven Barringer and Katie P. Reed

November 1, 2019

As legislative days dwindle, Congress is in a full sprint to pass the National Defense Authorization Act (NDAA) (related blog post), among several other must-pass bills. Controversial issues, such as border wall funding, military actions related to Iran, PFAS, among others, have bedeviled congressional negotiators since the Senate (S. 1790) and House (H.R. 2500) passed their bills in early summer. As Greenberg Traurig reported in July, H.R. 2500 would designate all PFAS (over 5,000 chemicals) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but S. 1790 does not include similar language.

Both bills contain a variety of provisions addressing PFAS pollution, and there is common ground on most of them between the House and Senate packages, and more generally, broad agreement among Republicans and Democrats that legislation is necessary to address PFAS. However, the CERCLA listing is where consensus breaks down.

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