Dear Section Members, Here is the news roundup from the second half of November. From Law360: Pa. DEP Seeks OK For $1.3M CERCLA Deal At Chemical Site<https://www.law360.com/environmental/articles/2262135/pa-dep-seeks-ok-for-1-3m-cercla-deal-at-chemical-site> The Pennsylvania Department of Environmental Protection is asking a federal court to approve a $1.3 million settlement with Arxada LLC to repay the state for cleaning up a former pool chemical storage and processing facility in Rochester, Beaver County. 3M Can't Add DuPont, Others To PFAS Water RICO Fight<https://www.law360.com/environmental/articles/2262480/3m-can-t-add-dupont-others-to-pfas-water-rico-fight> A Massachusetts federal judge rejected on Monday requests by 3M Corp. and other defendants to add DuPont entities and over a dozen additional companies as cross-defendants in a proposed racketeering class action seeking to hold the companies liable for conspiring to contaminate local drinking water with so-called forever chemicals. LA Waterkeeper Sues Union Pacific Over Pollution Controls<https://www.law360.com/environmental/articles/2262731/la-waterkeeper-sues-union-pacific-over-pollution-controls> The Los Angeles Waterkeeper slapped Union Pacific Railroad Co. with a complaint in California federal court, alleging the company's failure to implement pollution controls at four industrial facilities has led to hazardous discharges of heavy metals and oils into the San Jose Creek, San Gabriel River and other bodies of water. Arizona Governor Settles Tribal Water Rights Claims<https://www.law360.com/environmental/articles/2263605/arizona-governor-settles-tribal-water-rights-claims-> Two agreements signed by Arizona Gov. Katie Hobbs settled four tribal nations' water rights claims and will help to provide safe drinking water to thousands of Native Americans on reservation lands that depend on the Colorado River Basin System. Phillips 66 Charged With Dumping Wastewater In LA County<https://www.law360.com/environmental/articles/2264106/phillips-66-charged-with-dumping-wastewater-in-la-county> A federal grand jury has indicted Phillips 66 on charges of violating the Clean Water Act by illegally discharging hundreds of thousands of gallons of wastewater into the Los Angeles County sewer system without reporting the violations to authorities, the U.S. Justice Department announced Thursday. PFAS Foam MDL Attys Score $95.8M For Tyco, BASF Deals<https://www.law360.com/environmental/articles/2264798/pfas-foam-mdl-attys-score-95-8m-for-tyco-basf-deals> A South Carolina federal judge awarded nearly $96 million in combined fees and costs Friday to lead counsel representing public water systems for reaching a $316.5 million deal with BASF Corp. and $750 million with Tyco Fire Products LP over forever chemicals, lauding them as "some of the most qualified mass tort litigators in America." Mich. Justices Want To Know If 3M Water Challenge Is Moot<https://www.law360.com/environmental/articles/2264570/mich-justices-want-to-know-if-3m-water-challenge-is-moot> The Michigan Supreme Court ordered additional briefing Friday in 3M Co.'s challenge to regulations on PFAS in drinking water to address whether subsequent regulatory changes made 3M's lawsuit moot, echoing a focal point of last week's oral arguments in the case. EPA Mercury Rule Is Fatally Flawed, DC Circ. Told<https://www.law360.com/environmental/articles/2266402/epa-mercury-rule-is-fatally-flawed-dc-circ-told> Republican-led states and fossil fuel industry groups fired back at the U.S. Environmental Protection Agency's recent defense of its rule strengthening standards for mercury and other toxic air emissions at power plants, telling the D.C. Circuit the agency misinterpreted the Clean Air Act's pollution reduction goals. From Law.com: Are Federal and State Superfund Laws the Best Way to Address Microplastics?<https://www.law.com/newyorklawjournal/2024/11/18/are-federal-and-state-superfund-laws-the-best-way-to-address-microplastics/> Litigation related to plastics and microplastic pollution is on the rise. Plaintiffs have brought claims under numerous theories of liability. The state of New York’s common law nuisance claims against PepsiCo were recently met with disdain. The court summarily dismissed New York’s case calling it a “predatory lawsuit” that without a statutory claim was “simply policy idealism.” Some parties have raised the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a statute to regulate microplastics. But is CERCLA really applicable to microplastics? The Growing PFAS Morass: Why Insurance Should Cover These Products Liability Claims<https://www.law.com/thelegalintelligencer/2024/11/21/the-growing-pfas-morass-why-insurance-should-cover-these-products-liability-claims/> With the increase in litigation and the newly minted state and federal regulations, companies of all types will likely be on the receiving end of an increased level of scrutiny from the public and the plaintiffs’ bar about potential claims involving products containing PFAS in some capacity. Cars Reach Record Fuel Economy but Largely Fail to Meet Biden's EPA Standard, Agency Says<https://www.law.com/nationallawjournal/2024/11/26/cars-reach-record-fuel-economy-but-largely-fail-to-meet-bidens-epa-standard-agency-says/> Environmental Protection Agency rules finalized in 2021 required car makers to reach 6.5% year-to-year improvement in fuel economy for 2023 model cars. Among large manufacturers, just BMW and Mercedes reached the threshold, the EPA reported. Environmental Fines: Texas Secures Over $100M From Petrochemical Processor TPC Group<https://www.law.com/texaslawyer/2024/11/25/environmental-fines-texas-secures-over-100m-from-petrochemical-processor-tpc-group/> Following an EPA $30.1 million settlement, Texas announced its own settlement for over $100 million with TPC Group. From National Law Review: EPA Designation of PFAS as Chemicals of Special Concern Expands TRI Reporting Requirements for Nearly 200 PFAS<https://natlawreview.com/article/epa-designation-pfas-chemicals-special-concern-expands-tri-reporting-requirements> Long-term changes to Toxics Release Inventory (“TRI”) reporting requirements under the Emergency Planning and Community Right-to-Know Act (“EPCRA”) will require thousands of facilities to submit reports on per- and poly-fluoroalkyl substances (“PFAS”) for the first time in 2025. More than 196 PFAS chemicals are listed on the TRI list for the 2024 reporting year, and exemptions for PFAS contained at low concentrations in mixtures and articles no longer apply. EPA Region 9 Finalizes Purported Expansion of NPDES Stormwater Regulation for Two Watersheds in Los Angeles County<https://natlawreview.com/article/epa-region-9-finalizes-purported-expansion-npdes-stormwater-regulation-two> On November 20, 2024, the U.S. Environmental Protection Agency (EPA) Region 9 published in the Federal Register its Final Designation of stormwater discharges from commercial, industrial, and institutional (CII) properties consisting of five or more acres of impermeable surfaces in two watersheds in the Los Angeles County area: the Alamitos Bay/Los Cerritos Channel Watershed and the Dominguez Channel and Los Angeles/Long Beach Inner Harbor Watershed. Region 9’s Final Designation is a purported exercise of EPA’s “residual designation authority” (RDA) under section 402(p)(2)(E) of the Clean Water Act (CWA). The action responds to two September 15, 2015, petitions requesting action and a federal court order in Los Angeles Waterkeeper v. Pruitt, 320 F. Supp. 3d 1115 (C.D. Cal. 2018). EPA Releases Updates to Suggested Pesticide Benefits Information Submittals<https://natlawreview.com/article/epa-releases-updates-suggested-pesticide-benefits-information-submittals> On November 6, 2024, the U.S. Environmental Protection Agency (EPA) announced the release of updates to suggestions it provides to registrants when they develop benefits information for new conventional pesticide registrations and new outdoor uses of conventional pesticides. EPA states the updated document may assist registrants to ensure they submit useful and complete benefits-related information and thus save EPA’s review time for new pesticide registrations and outdoor uses. From JD Supra: PFAS in Groundwater: State-by-state Regulations - November 2024<https://www.jdsupra.com/legalnews/pfas-in-groundwater-state-by-state-6899834/> In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, several states have started the process of regulating PFAS in groundwater themselves. As a result, states have adopted a patchwork of regulations and guidance standards that present significant compliance challenges to impacted industries. This client alert explores the current landscape of state regulations regarding the advisory, notification, and cleanup levels for PFAS – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”) – in groundwater. PFAS Designation Rule Will Impact Operational Compliance, Enforcement, Litigation and Policy<https://www.jdsupra.com/legalnews/pfas-designation-rule-will-impact-9142132/> Although the U.S. Environmental Protection Agency (EPA) proposed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the federal Superfund law (PFAS Designation Rule) in September 2022, it has been a topic of discussion for the agency and the regulated community for at least a decade. Despite a relatively short (60-day) comment period and significant industry backlash, the EPA finalized the PFAS Designation Rule on April 19, 2024, and designated two of the most commonly used PFAS – PFOA and PFOS – and their salts and structural isomers as "hazardous substances" under the federal Superfund law. The law became effective on July 8, 2024, and with it comes a cadre of obligations and potential liability for the regulated community. This Holland & Knight alert explores some of the more significant impacts of this new rule on industry. Trends in Climate Litigation<https://www.jdsupra.com/legalnews/trends-in-climate-litigation-2630415/> Climate litigation has attracted significant media attention in recent years, with the number of cases globally continuing to grow markedly. Such cases broadly fall into two categories: claims for compensation related to historic activity, and claims seeking to change or influence current or proposed activity or policy. Indeed, the use of litigation as a tool to effect change in the area of carbon emissions is evident across many jurisdictions, with representatives of every member state of the Intergovernmental Panel on Climate Change approving a 2022 report recognizing the role of litigation in affecting “the outcome and ambition of climate governance”. However, it’s not all one-way traffic; there is an emerging trend of claims against governments relating to losses suffered as a result of restrictions on the production and use of hydrocarbons. PFAS in Groundwater: State-by-state Regulations - November 2024<https://www.jdsupra.com/legalnews/pfas-in-groundwater-state-by-state-6899834/> In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, several states have started the process of regulating PFAS in groundwater themselves. As a result, states have adopted a patchwork of regulations and guidance standards that present significant compliance challenges to impacted industries. This client alert explores the current landscape of state regulations regarding the advisory, notification, and cleanup levels for PFAS – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”) – in groundwater. The Future of U.S. Environmental Regulation: What to Expect in 2025<https://www.jdsupra.com/legalnews/the-future-of-u-s-environmental-4741264/> While still a newly minted lawyer early in 1977, I had the good fortune to land a job with the then brand-new Rhode Island Department of Environmental Management. This coincided with the 1976 election of Jimmy Carter as President, who was more favorable to environmental protection than his predecessors. State environmental agencies address many local concerns, but federal environmental agencies typically have more funding and a broader mandate. However, with every change of federal administrations, there is typically a focus on which regulations will be expanded and which will be repealed. When it comes to environmental regulations, however, it helps to understand the history of environmental regulation in the United States. Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|