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On March 29 the US House of Representatives adopted by voice vote an amendment offered by Reps. Dan Crenshaw (R-TX) and August Pfluger (R-TX) to speed up Environmental Protection Agency (EPA) review of state applications for primacy to run the Class VI Underground Injection Control (UIC) program. The amendment was included in H.R. 1, the Lower Energy Costs Act, the high-profile energy and permitting reform bill the House approved on March 30.

The UIC program is designed to prevent endangerment of underground sources of drinking water from subsurface injections. The Class VI program specifically regulates the geologic sequestration of carbon dioxide, which is considered to be essential for the world to meet international emission reduction targets. …

Continue Reading House of Representatives Approves Class VI Primacy Amendment

President Biden issued his second veto late last week. The President’s second veto protects a U.S. EPA rule that went into effect on March 20, 2023. That rule redefines “waters of the United States” (WOTUS), and at a high conceptual level, returns the Agency’s interpretation of WOTUS to that of the Obama administration, an interpretation that was revoked and replaced by the Trump administration.

This matter has been hotly contested in the federal courts. Indeed, the U.S. Supreme Court is poised to issue a ruling within the next several weeks on Sackett v. EPA, a decision which could substantially revise and narrow the Agency’s definition of “waters of the United States.” The Court’s decision here could send the Biden administration’s revised definition of WOTUS back to EPA for changes needed in-line with the Court’s decision, if and when issued.…

Continue Reading President Biden’s Second Veto Is on Congress’ Disapproval of EPA’s Revised Definition of WOTUS

Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA).  This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS.  The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR).  In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test).  The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters.  The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.…

Continue Reading EPA and Army Corps Issue New “WOTUS” Rule While Supreme Court Considers Jurisdiction Over Adjacent Wetlands

The Texas Commission on Environmental Quality is inviting informal public comment on the draft Regulatory Guidance Document for Evaluation of Regionalization for Potential New Wastewater Systems. TCEQ is required to implement a policy to “encourage and promote the development and use of regional and area-wide waste collection, treatment and disposal systems to serve the waste disposal needs of the citizens of the state and to prevent pollution and maintain and enhance the quality of the water in the state.” …
Continue Reading TCEQ Requests Public Input on Draft Wastewater Regionalization Guidance

A recent Fourth Circuit decision narrowly construed the state administrative enforcement bar to the Clean Water Act citizen suit, allowing a citizen suit seeking civil penalties to proceed despite the fact the state had already issued a notice of violation for the same alleged conduct. …
Continue Reading Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit

On June 15, 2022, the United States Environmental Protection Agency (EPA) released drinking water health advisories [1] for certain per- and polyfluoroalkyl substances (PFAS), resulting in the establishment of:

  1. Near zero updated interim advisory levels for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) that are not only orders of magnitude below previously established levels, but that are also below detectable levels and, notably, were issued in advance of completion of peer review by EPA’s Science Advisory Board (SAB); and
  2. Newly issued final advisories at low levels for GenX and PFBS chemicals that have been used as replacement chemicals for PFOA and PFOS.

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Continue Reading EPA Issues Near Zero Drinking Water Health Advisories for Certain PFAS

A recent federal district court decision shows how a consent decree can provide protection to responsible parties under CERCLA by precluding later-filed tort claims seeking additional relief or different remedial action.
Continue Reading Federal Court Finds Tort Claims Preempted by CERCLA Consent Decree

On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) published a second 15-day notice of modification to its proposed Proposition 65 safe harbor “short-form” warning regulations.  If adopted, the amendments would significantly impact businesses’ use of the short-form warnings.
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Continue Reading California Proposition 65: OEHHA Publishes Second Modification to Proposed Rules to Short-Form Warnings

On April 5 and 7, 2022, the State Water Resources Control Board (Board) will be holding public workshops to present information and solicit public input regarding a proposed administrative draft of a hexavalent chromium (chromium-6) maximum contaminant level (MCL). MCLs are drinking water standards with which public water systems must comply. The workshops, and administrative draft of the MCL, will help inform the Board’s formal rulemaking, expected to begin later this year. If adopted, the MCL would be the first drinking water standard for chromium-6 in the nation. [1]
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Continue Reading California on Path (Again) toward Regulating Hexavalent Chromium (Chromium-6) in Drinking Water; Follows EPA Scientific Workshop in September 2021