Dear Section Members, Here is the news roundup. National Law Review EPA Launches Clean Ports Initiative with Two Competitive Grant Programs<https://www.natlawreview.com/article/epa-launches-clean-ports-initiative-two-competitive-grant-programs> On February 28, 2024, the US Environmental Protection Agency (EPA) released two separate Notices of Funding Opportunity (NOFOs) for a total of almost $3 billion in grants in its Clean Ports Program. With financing from the Inflation Reduction Act, the NOFO designated the Zero-Emission Technology Deployment Competition will provide $2.8 billion to fund zero-emission port equipment and infrastructure, in an effort to reduce mobile source emissions at US ports. The other NOFO, designated the Climate and Air Quality Planning Competition, will provide $150 million to fund climate and air quality planning activities. Supreme Court Update: How Would Changes to Chevron Deference Affect EPA Risk Analyses<https://www.natlawreview.com/article/supreme-court-update-how-would-changes-chevron-deference-affect-epa-risk-analyses> In Brief: Entities subject to EPA regulation are closely watching the U.S. Supreme Court’s potential reframing of the Chevron deference doctrine. But they should also pay close attention to EPA’s extra-regulatory scientific determinations, such as IRIS assessments. These decisions have significant policy implications but will likely not be affected by any changes to Chevron deference. The City and County of San Francisco Are About to Deliver EPA & the Ninth Circuit Their 3rd Consecutive Clean Water Act Defeat in The Supreme Court<https://www.natlawreview.com/article/city-and-county-san-francisco-are-about-deliver-epa-ninth-circuit-their-3rd> The United States Supreme Court isn't done with the Clean Water Act and EPA's interpretation of it. This month the City and County of San Francisco asked the nation's highest court to overturn a split Ninth Circuit Court of Appeals decision upholding an EPA NPDES permit that contains two general narrative prohibitions on discharges from the Oceanside combined sewer system and wastewater treatment facility. One of those prohibitions was of discharges from the facility that “cause or contribute to violations of applicable water quality standards.” EPA Lowers the Fine Particulate NAAQS: A Closer Look at Implementation and Potential Impacts<https://www.natlawreview.com/article/epa-lowers-fine-particulate-naaqs-closer-look-implementation-and-potential-impacts> On February 7, 2024, the U.S. Environmental Protection Agency (EPA) released its Final Rule lowering the primary annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM 2.5) from the current level of 12 micrograms per cubic meter (μg/m3) to 9 μg/m3. Once published, the Final Rule is certain to be challenged in court. With that caveat, we summarize below the planned implementation and potential impacts of the new standard on sources of PM 2.5 or PM 2.5 precursor emissions. For more background, see our prior post about EPA’s 2023 proposal to lower the NAAQS and sources of PM 2.5. PFAS and RCRA: EPA’s Latest Proposed Rules Significantly Expand Corrective Action Authority<https://www.natlawreview.com/article/pfas-and-rcra-epas-latest-proposed-rules-significantly-expand-corrective-action> On February 8, 2024, the U.S. Environmental Protection Agency (EPA) published two proposed rules to address per- and polyfluoroalkyl substances (PFAS) and other emerging contaminants under the authority of the Resource Conservation and Recovery Act (RCRA). Specifically, EPA is proposing to add nine PFAS (including their salts and structural isomers) to the list of “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261. EPA is also proposing to clarify, by regulation, that emerging contaminants – including PFAS – can be addressed under RCRA’s Corrective Action Program. Comments on the first proposed rule, Listing of Specific PFAS as Hazardous Constituents, are due April 8, 2024, and comments on the second proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, are due March 11, 2024. JD Supra EPA Releases Risk Management Program Final Rule<https://www.jdsupra.com/legalnews/epa-releases-risk-management-program-4614803/> On March 1, 2024, the U.S. Environmental Protection Agency (EPA) signed its final “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention” rule (the Final Rule). EPA’s issuance of the Final Rule concludes a seven-year back-and-forth to revise and enhance existing Risk Management Program (RMP) requirements. The Final Rule makes significant changes to the RMP program, adds more stringent requirements for regulated entities, and reiterates EPA's commitment to active enforcement. It also highlights an opportunity for companies to evaluate applicability of the RMP at their facilities. If subject, regulated entities should consider whether their plans are fully implemented, as EPA continues to prioritize reducing accidental releases at industrial and chemical facilities as part of its National Enforcement and Compliance Initiatives. Lagoon Requirements/Best Management Practices for Use/Disposal of Sewage Sludge: U.S. Environmental Protection Agency Issues Guidance Document<https://www.jdsupra.com/legalnews/lagoon-requirements-best-management-8417155/> The United States Environmental Protection Agency (“EPA”) issued a February 2024 guidance document (“Guidance”) titled: “Understanding Lagoon Requirements Under 40 C.F.R. Part 503: Best Management Practice for Use or Disposal of Sewage Sludge” EPA Test Methods 1633 and 1621 Shape Future of PFAS Management<https://www.jdsupra.com/legalnews/epa-test-methods-1633-and-1621-shape-4671577/> The U.S. Environmental Protection Agency (EPA) finalized Test Methods 1633 and 1621, environmental sampling methods for analyzing up to 40 target per- and polyfluoroalkyl substances (PFAS) in soil, groundwater, and other environmental media. The EPA’s recent adoption of Methods 1633 and 1621 aims to establish standardized and quantifiable standards for measuring detectable levels of PFAS in soil and groundwater samples, setting the stage for regulatory enforcement. California Legislation Seeks to Ban PFAS in Consumer Products Effective 2030<https://www.jdsupra.com/legalnews/california-legislation-seeks-to-ban-4093449/> California’s extensive regulatory approach to per- and polyfluoroalkyl substances (“PFAS”) is poised to take a dramatic step forward with a proposed ban on the ​“forever chemicals” in most consumer products. Following the adoption of similar bans in Maine and Minnesota, California state senator Nancy Skinner (D-Berkeley) introduced bill SB 903 to the state senate last Monday, which would prohibit the distribution, sale, or offering for sale of products containing ​“intentionally added” PFAS. While the bill does not introduce anything particularly innovative by way of PFAS bans in consumer goods, it does represent one of the most comprehensive instructions to a regulatory agency on how to effectuate such a ban. CEQA Remedies Go Both Ways: Fourth District Reverses Judgment Upholding San Diego County Board’s Decision Granting Project Opponents’ Administrative Appeal, Holds Board Erred In Finding CEQA Guidelines Section 15183 Statutory Exemption Inapplicable And Ordering EIR Prepared for Exempt Industrial Project<https://www.jdsupra.com/legalnews/ceqa-remedies-go-both-ways-fourth-9160448/> In an important published opinion filed February 16, 2024, the Fourth District Court of Appeal (Div. 1) held the San Diego County Board of Supervisors committed a prejudicial abuse of discretion in granting project opponents’ appeals of the Planning Commission’s decision upholding County’s use of the CEQA Guidelines section 15183 exemption for a construction debris and inert materials recycling facility project. Hilltop Group, Inc., et al v. County of San Diego, et al. (2024) ___ Cal.App.5th ___. The decision is noteworthy not just as the newest in a series of recent published decisions explicating the application of this important CEQA exemption, but because it sides with and grants a writ remedy to a project developer plaintiff that ultimately prevailed in litigation alleging a lead agency overstepped its legal authority by ordering preparation of an unnecessary EIR for an exempt project. Confronting Regulatory Fluidity in the Post-Maui and Post-Sackett World of Water Regulation<https://www.jdsupra.com/legalnews/confronting-regulatory-fluidity-in-the-8341987/> Both regulators and the regulated community must remain alert to accommodate the constantly changing regulatory scheme created in the post-Sackett world. Law360 Biden Admin Seeks Pretrial Win In Texas Emissions Suit<https://www.law360.com/environmental/articles/1810722/biden-admin-seeks-pretrial-win-in-texas-emissions-suit> The Biden administration on Tuesday asked a federal judge to grant it a pretrial win as it seeks to defeat a challenge by Texas to a rule requiring states to set targets for greenhouse gases on federally funded roads. Red States Challenge EPA's Particulate Matter Standards<https://www.law360.com/environmental/articles/1810761/red-states-challenge-epa-s-particulate-matter-standards> A coalition of 24 Republican-led states filed a petition before the D.C. Circuit on Wednesday urging the court to upend the U.S. Environmental Protection Agency's recently announced final rule tightening federal standards for fine particulate matter pollution. DC Circ. Says EPA Went Too Far In Voiding State Air Plans<https://www.law360.com/environmental/articles/1808832/dc-circ-says-epa-went-too-far-in-voiding-state-air-plans> The D.C. Circuit on Friday handed the U.S. Environmental Protection Agency a mixed bag regarding its authority to veto state air pollution plans, finding some state policies that exempt polluting facilities during startup, shutdown and malfunction phases are acceptable under the Clean Air Act, while others are not. Kimberly-Clark Hit With Connecticut PFAS Class Action<https://www.law360.com/environmental/articles/1808201/kimberly-clark-hit-with-connecticut-pfas-class-action> Three Connecticut residents have hit Kimberly-Clark Corp. with a proposed class action for allegedly contaminating private wells near its New Milford manufacturing plant with toxic "forever chemicals" emitted from the facility's smokestacks into the air and spread to the surrounding area. States, Businesses Aim To Kill Feds' Revised Water Rule<https://www.law360.com/environmental/articles/1807124/states-businesses-aim-to-kill-feds-revised-water-rule> States and business groups have asked a North Dakota federal judge to force the U.S. Environmental Protection Agency to revise regulations intended to define the scope of the federal government's authority under the Clean Water Act. Feds, Fla. Oppose Sharing Power In Clean Water Act Program<https://www.law360.com/environmental/articles/1806843/feds-fla-oppose-sharing-power-in-clean-water-act-program> The federal government and Florida are now fighting over how much power each should get after a D.C. federal judge struck down the U.S. Environmental Protection Agency's decision to approve the Sunshine State's bid to assume authority over a key Clean Water Act permitting program. EPA Puts $5.8B On Tap For Water Infrastructure Projects<https://www.law360.com/environmental/articles/1804843/epa-puts-5-8b-on-tap-for-water-infrastructure-projects> The Biden administration said it's making $5.8 billion available to help pay for water projects around the U.S., steering millions of dollars to states and territories to help overhaul drinking water infrastructure, and wastewater and stormwater systems. Law.com EPA Set to Designate PFAS as Hazardous Substances Next Month<https://www.law.com/nationallawjournal/2024/02/20/epa-set-to-designate--as-hazardous-substances-next-month/> “Anytime you get a substance that is widely used and is showing up all over the place in the environment, now suddenly brought under the very serious liability regime of CERCLA, you’re going to see a lot of potential liability and litigation around that,” said UCLA environmental law professor William Boyd. Recent Developments and Trends in Greenwashing Claims<https://www.law.com/thelegalintelligencer/2024/02/21/recent-developments-and-trends-in-greenwashing-claims/> Lawsuits alleging greenwashing are on the rise, targeting companies emphasizing environmentally conscious business practices and promoting environmental benefits of goods or services. Federal Judge Approves $1.1B DuPont PFAS Water Contamination Settlement<https://www.law.com/2024/02/12/federal-judge-approves-1-1b-dupont-pfas-water-contamination-settlement/> "The court finds that the settlement agreement is reasonable," U.S. District Judge Richard Gergel said. "As discussed at length ... success against defendants, which 'are responsible for only three to seven percent of the MDL defendants’ total alleged PFAS-related liabilities,' is not guaranteed and would only come, if ever, after years of protracted, expensive, complex litigation." Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|