Jenner & Block

Corporate Environmental Lawyer Blog

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

Webres_Steven_Siros_3130

 

By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

Webres_Steven_Siros_3130

 

By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 2, 2019 Trends in Climate Change Litigation: Part 1

Matthew G. Lawson

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

April 2, 2019 Trends in Climate Change Litigation: Part 1

Headshot

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

Linkedin_Steven_Siros_3130

 

By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

CATEGORIES: Cercla, Climate Change, OSHA, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

Linkedin_Steven_Siros_3130

 

By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

CATEGORIES: Cercla, Climate Change, OSHA, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

February 12, 2019 BACT to the Future: Enviros Petition for Review on Natural Gas Power Plant Air Permit, Saying Batteries Are “BACT” Under the Clean Air Act

Bandza  By Alexander J. Bandza Air pollution

Last week, the Center for Biological Diversity and other environmental groups petitioned the Ninth Circuit for review of EPA Region 9’s decision in December 2018 to issue a final prevention of significant deterioration (PSD) permit for the Palmdale Energy Project (Project), a gas-fired plant being developed in the city of Palmdale, CA. These environmental groups had previously but unsuccessfully challenged the permit in front of EPA’s Environmental Appeals Board (EAB), arguing that a new control technology configuration—namely, replacing the combined-cycle turbines’ duct burners with battery storage—should be used to satisfy EPA Region 9’s “Best Available Control Technology” (BACT) requirements under the Clean Air Act (CAA). The EAB denied the environmental groups’ appeal in October 2018. However, as the EAB explicitly recognized, “energy storage technology is a rapidly growing development in the electrical power supply sector,” and therefore the totality of the environmental groups’ efforts may spur additional consideration of battery storage as an option for facilities to meet their obligations under the CAA.

By way of overview, an entity desiring to construct a “major emitting facility” in a CAA-defined “attainment” or “unclassifiable” area must obtain preconstruction approval, in the form of a PSD permit, to build such a facility. CAA § 165. An applicant for a PSD permit must show that its proposal will achieve emissions limits established by BACT for pollutants emitted from its facility in amounts greater than applicable levels of significance. A BACT analysis is a site-specific, pollutant-specific determination that results in the selection of emissions limits representing application of air pollution control technologies or methods appropriate for the facility in question.

In October 2015, Palmdale filed an application with EPA Region 9 for a PSD permit to construct and operate the Project, a new major stationary source, on fifty acres of land in the City of Palmdale, California. The facility consists of two natural gas-fired combustion turbine generators, each of which is equipped with a natural gas-fired duct burner. Each of the two combustion turbine/duct burner combinations vents heat energy to its own dedicated heat recovery steam generator (HRSG), and steam from both HRSGs is routed to a single steam turbine generator. The duct burners boost the total heat input to the HRSGs, which increases steam output from the HRSGs and concomitantly the amount of electricity the steam generator, and thus the entire facility, produces.

In August 2017, EPA Region 9 issued and invited public comment on a draft PSD permit for the construction and operation of, including the regulation of emissions from, the proposed facility.  The environmental groups identified a new control technology configuration—replacing the combined-cycle turbines’ duct burners with battery storage—that neither the Project applicant nor EPA Region 9 had identified as a potential control technology in the original BACT analysis.  In response to the comments, EPA Region 9 determined that using battery storage to replace duct burners could be rejected as technically infeasible, ineffective, and on the basis of energy, environmental, and economic impacts.  As to the first basis for rejection, EPA Region 9 analyzed the largest battery configuration that the environmental groups had identified in their comments—a Tesla 100 MW lithium-ion battery storage facility for an Australian wind farm.  EPA Region 9 concluded that the duct burners could meet the hours required under the longer peak demand periods, whereas the battery configuration could not.  Thus, EPA Region 9 rejected battery storage could be BACT.

The EAB affirmed, concluding that the environmental groups failed meet their burden of establishing that the Region’s analysis was clearly erroneous or otherwise warrants review.  However, the EAB provided hope for future battery-storage efforts (emphasis added):  “The Board observes that its decision is based on the record in this matter and its decision should not be taken to suggest that the Conservation Groups’ proposal can never be BACT for a particular facility. As the Board noted above, BACT is an emission limit that is based on a ‘case-by-case’ analysis, and the Region recognizes that ‘[e]nergy storage technology is a rapidly growing development in the electrical power supply sector[.]’  Thus, what may not be BACT for purposes of this permit application may be BACT for a future permit application.”  Because the environmental groups’ challenge focuses on EPA Region 9’s approval of this air permit, it is anticipated that many of the same arguments and discussion will occur at the Ninth Circuit.

CATEGORIES: Air, Climate Change, Sustainability

February 12, 2019 BACT to the Future: Enviros Petition for Review on Natural Gas Power Plant Air Permit, Saying Batteries Are “BACT” Under the Clean Air Act

Bandza  By Alexander J. Bandza Air pollution

Last week, the Center for Biological Diversity and other environmental groups petitioned the Ninth Circuit for review of EPA Region 9’s decision in December 2018 to issue a final prevention of significant deterioration (PSD) permit for the Palmdale Energy Project (Project), a gas-fired plant being developed in the city of Palmdale, CA. These environmental groups had previously but unsuccessfully challenged the permit in front of EPA’s Environmental Appeals Board (EAB), arguing that a new control technology configuration—namely, replacing the combined-cycle turbines’ duct burners with battery storage—should be used to satisfy EPA Region 9’s “Best Available Control Technology” (BACT) requirements under the Clean Air Act (CAA). The EAB denied the environmental groups’ appeal in October 2018. However, as the EAB explicitly recognized, “energy storage technology is a rapidly growing development in the electrical power supply sector,” and therefore the totality of the environmental groups’ efforts may spur additional consideration of battery storage as an option for facilities to meet their obligations under the CAA.

By way of overview, an entity desiring to construct a “major emitting facility” in a CAA-defined “attainment” or “unclassifiable” area must obtain preconstruction approval, in the form of a PSD permit, to build such a facility. CAA § 165. An applicant for a PSD permit must show that its proposal will achieve emissions limits established by BACT for pollutants emitted from its facility in amounts greater than applicable levels of significance. A BACT analysis is a site-specific, pollutant-specific determination that results in the selection of emissions limits representing application of air pollution control technologies or methods appropriate for the facility in question.

In October 2015, Palmdale filed an application with EPA Region 9 for a PSD permit to construct and operate the Project, a new major stationary source, on fifty acres of land in the City of Palmdale, California. The facility consists of two natural gas-fired combustion turbine generators, each of which is equipped with a natural gas-fired duct burner. Each of the two combustion turbine/duct burner combinations vents heat energy to its own dedicated heat recovery steam generator (HRSG), and steam from both HRSGs is routed to a single steam turbine generator. The duct burners boost the total heat input to the HRSGs, which increases steam output from the HRSGs and concomitantly the amount of electricity the steam generator, and thus the entire facility, produces.

In August 2017, EPA Region 9 issued and invited public comment on a draft PSD permit for the construction and operation of, including the regulation of emissions from, the proposed facility.  The environmental groups identified a new control technology configuration—replacing the combined-cycle turbines’ duct burners with battery storage—that neither the Project applicant nor EPA Region 9 had identified as a potential control technology in the original BACT analysis.  In response to the comments, EPA Region 9 determined that using battery storage to replace duct burners could be rejected as technically infeasible, ineffective, and on the basis of energy, environmental, and economic impacts.  As to the first basis for rejection, EPA Region 9 analyzed the largest battery configuration that the environmental groups had identified in their comments—a Tesla 100 MW lithium-ion battery storage facility for an Australian wind farm.  EPA Region 9 concluded that the duct burners could meet the hours required under the longer peak demand periods, whereas the battery configuration could not.  Thus, EPA Region 9 rejected battery storage could be BACT.

The EAB affirmed, concluding that the environmental groups failed meet their burden of establishing that the Region’s analysis was clearly erroneous or otherwise warrants review.  However, the EAB provided hope for future battery-storage efforts (emphasis added):  “The Board observes that its decision is based on the record in this matter and its decision should not be taken to suggest that the Conservation Groups’ proposal can never be BACT for a particular facility. As the Board noted above, BACT is an emission limit that is based on a ‘case-by-case’ analysis, and the Region recognizes that ‘[e]nergy storage technology is a rapidly growing development in the electrical power supply sector[.]’  Thus, what may not be BACT for purposes of this permit application may be BACT for a future permit application.”  Because the environmental groups’ challenge focuses on EPA Region 9’s approval of this air permit, it is anticipated that many of the same arguments and discussion will occur at the Ninth Circuit.

CATEGORIES: Air, Climate Change, Sustainability

January 29, 2019 What's in Your Baby Powder: NY Proposes Stringent New Disclosure Requirements on Cleaning and Personal Care Products

By Alexander M. Smith Image

Last week, New York Governor Andrew Cuomo announced the Consumer Right to Know Act (“Act”) as part of his proposed executive budget. The Act would authorize the New York Department of Environmental Conservation, along with the New York Department of Health and the New York Department of State, to promulgate regulations requiring product manufacturers to disclose the presence of potentially hazardous substances on their product labeling. Among other things, the Act would require these agencies to assess the feasibility of on-package labeling; develop regulations establishing a labeling requirement for designated products; develop a list of more than 1,000 substances that must be labeled; and identify the types of consumer products that will be subject to these new labeling requirements. The Act would also extend the Department of Environmental Conservation’s disclosure requirements for household cleaning products to encompass all cleaning products sold in New York, and it would empower the Department of Health to require similar disclosures for personal care products like shampoo, deodorant, or baby powder. Needless to say, these disclosure requirements would be among the most stringent—if not the most stringent—in the United States. 

Governor Cuomo’s announcement is available here. We will keep our readers updated on the progress of Governor Cuomo’s proposal. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability

January 29, 2019 What's in Your Baby Powder: NY Proposes Stringent New Disclosure Requirements on Cleaning and Personal Care Products

By Alexander M. Smith Image

Last week, New York Governor Andrew Cuomo announced the Consumer Right to Know Act (“Act”) as part of his proposed executive budget. The Act would authorize the New York Department of Environmental Conservation, along with the New York Department of Health and the New York Department of State, to promulgate regulations requiring product manufacturers to disclose the presence of potentially hazardous substances on their product labeling. Among other things, the Act would require these agencies to assess the feasibility of on-package labeling; develop regulations establishing a labeling requirement for designated products; develop a list of more than 1,000 substances that must be labeled; and identify the types of consumer products that will be subject to these new labeling requirements. The Act would also extend the Department of Environmental Conservation’s disclosure requirements for household cleaning products to encompass all cleaning products sold in New York, and it would empower the Department of Health to require similar disclosures for personal care products like shampoo, deodorant, or baby powder. Needless to say, these disclosure requirements would be among the most stringent—if not the most stringent—in the United States. 

Governor Cuomo’s announcement is available here. We will keep our readers updated on the progress of Governor Cuomo’s proposal. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability

PEOPLE: Steven R. Englund

January 3, 2019 How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water

Linkedin_Steven_Siros_3130

Drinking water

By Steven M. Siros

In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl  substances (PFAS). However, the Agency for Toxic Substances and Disease Registry  (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016.  The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.

The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized. 

However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.   

ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States. 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven M. Siros

January 3, 2019 How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water

Linkedin_Steven_Siros_3130

Drinking water

By Steven M. Siros

In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl  substances (PFAS). However, the Agency for Toxic Substances and Disease Registry  (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016.  The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.

The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized. 

However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.   

ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States. 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Steven M. Siros

December 12, 2018 The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA

Sigel

 

By Gabrielle Sigel

 

On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S.  The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”).  The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion.  The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration.  80 Fed. Reg. 37054.  Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule.  See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018).  As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.

The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.”  By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.”  The six categories are, in general:

  1. Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
  2. Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
  3. Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
  4. Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
  5. Impoundments – impoundments of otherwise defined WOTUS
  6. Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier

See the exact language of the six categories in the Proposed WOTUS Rule here.

The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.

The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language.  The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches.  In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA.  Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.

Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation.  The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.

The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register.  Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.

 

 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Gabrielle Sigel

December 12, 2018 The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA

Sigel

 

By Gabrielle Sigel

 

On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S.  The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”).  The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion.  The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration.  80 Fed. Reg. 37054.  Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule.  See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018).  As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.

The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.”  By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.”  The six categories are, in general:

  1. Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
  2. Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
  3. Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
  4. Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
  5. Impoundments – impoundments of otherwise defined WOTUS
  6. Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier

See the exact language of the six categories in the Proposed WOTUS Rule here.

The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.

The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language.  The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches.  In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA.  Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.

Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation.  The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.

The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register.  Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.

 

 

CATEGORIES: Climate Change, Sustainability, Water

PEOPLE: Gabrielle Sigel