Dear Section Members, Here is the news roundup from the past month. From Law360: Conn. PFAS Water Pollution Suit Returned To State Court<https://www.law360.com/environmental/articles/1882997/conn-pfas-water-pollution-suit-returned-to-state-court> A Connecticut federal judge has sent back to state court a proposed class action accusing the Connecticut Water Co. of knowingly selling water contaminated with dangerous levels of PFAS and failing to take steps to remove the pollutants, saying the water supply system's arguments are "fatally flawed." EPA Can't Justify Calif. Emissions Ruling, High Court Told<https://www.law360.com/environmental/articles/1882415/epa-can-t-justify-calif-emissions-ruling-high-court-told> Republican-led states told the U.S. Supreme Court the U.S. Environmental Protection Agency can't justify a D.C. Circuit decision backing its authorization of a Clean Air Act waiver allowing California to set its own greenhouse gas emissions standards for certain vehicles and run a zero-emissions vehicle program. EPA Defends Methane Rule At Supreme Court<https://www.law360.com/environmental/articles/1881210/epa-defends-methane-rule-at-supreme-court> The U.S. Environmental Protection Agency and green group allies on Friday asked the U.S. Supreme Court to reject states' and fossil fuel industry players' effort to block the implementation of a rule strengthening methane emissions control requirements for oil and gas infrastructure. Arkema Calls Timing 'Suspect' In Bid To Lift NJ PFAS Suit Stay<https://www.law360.com/environmental/articles/1877276/arkema-calls-timing-suspect-in-bid-to-lift-nj-pfas-suit-stay> Chemical company Arkema Inc. is arguing that if rival Solvay is allowed to sue it, the litigation could upend an impending settlement worth up to $108 million it negotiated with the state of New Jersey that would end claims over "forever chemical" contamination at a facility both companies owned. Wash. Justices Uphold State's Wastewater Nitrogen Limits<https://www.law360.com/environmental/articles/1876908/wash-justices-uphold-state-s-wastewater-nitrogen-limits> The Washington Supreme Court overturned a win for the city of Tacoma and other municipal wastewater treatment plant operators challenging state caps on nitrogen discharges, finding Thursday that the limits state regulators added to its permits don't qualify as a rule under the Administrative Procedure Act. Biden Admin Issues Plans To Address PFAS Use, Exposure<https://www.law360.com/environmental/articles/1876029/biden-admin-issues-plans-to-address-pfas-use-exposure> The Biden administration has said it will continue to look for new technologies to remove so-called forever chemicals from the environment and find safe alternatives for the substances, which are used in a vast number of consumer and commercial products. Calif. Backs EPA's High Court Fight To Keep SF Water Limits<https://www.law360.com/environmental/articles/1875860/calif-backs-epa-s-high-court-fight-to-keep-sf-water-limits> The U.S. Environmental Protection Agency's water quality standards for San Francisco are legal and should be upheld in the face of a challenge from the city, California and various green groups told the U.S. Supreme Court on Tuesday. From Law.com: What Does It Take to 'Incur' a Cleanup Cost Under CERCLA?<https://www.law.com/thelegalintelligencer/2024/09/19/what-does-it-take-to-incur-a-cleanup-cost-under-cercla/> A recent appellate decision, to be sure unreported and therefore not binding, raises the interesting question of what a person must do to "incur" a cost. The person in question was a law firm and this is an "environmental law practice" column, so the question may be doubly interesting. Bonta, Environmental Groups Sue Exxon Mobil Over Plastic Recycling Claims<https://www.law.com/therecorder/2024/09/23/bonta-environmental-groups-sue-exxon-mobil-over-plastic-recycling-claims/> California Attorney General Rob Bonta said his office will "in all likelihood" seek to recover billions of dollars from Exxon Mobil for misleading consumers into thinking their plastic products can be readily recycled. New York Falling Behind in Implementing Bold Climate Law<https://www.law.com/newyorklawjournal/2024/09/11/new-york-falling-behind-in-implementing-bold-climate-law/> "We still do not know how much sweat and treasure will be required, but sadly it appears that the political will may be faltering," writes Michael B. Gerrard. From National Law Review: Bicameral Legislation Would Ban Non-Essential PFAS Uses within Ten Years<https://natlawreview.com/article/bicameral-legislation-would-ban-non-essential-pfas-uses-within-ten-years> On April 18, 2024, Representative Betty McCollum (D-MN) announced that she and Senator Dick Durbin (D-IL) introduced the Forever Chemical Regulation and Accountability Act (H.R. 8074, S. 4187), “bicameral legislation to address the excessive use of per- and polyfluoroalkyl substances (PFAS) across the nation’s supply chain, which has led to the harmful compounds contaminating water sources, as well as surrounding environments and communities.” Texas Sued By Environmental Group For Anti-ESG Law<https://natlawreview.com/article/texas-sued-environmental-group-anti-esg-law> On September 1, 2021, the State of Texas enacted a law (SB 13) that constitutes one of the most far-reaching anti-ESG laws among the various states. It bars state institutions from investing in companies that “boycott” energy companies and requires the state of Texas to fully divest from all of these designated companies (unless they cease boycotting energy companies). This legislation was one of many proposed and enacted by conservative states seeking to prevent state retirement funds from directing monies to entities that, from the perspective of these states, embraced an ESG-focused agenda--primarily targeting those businesses that sought to limit their relations with fossil fuel companies. Indeed, this law was expressly described as intending to combat a “movement” that is “denying capital to [Texas's] responsible, hard-working energy businesses.” Recent EPA Regulatory Agenda Shows Continued Focus on Increasing Restrictions on Chemicals and PFAS (Including Products Containing Them) That Will Impact US Supply Chain<https://natlawreview.com/article/recent-epa-regulatory-agenda-shows-continued-focus-increasing-restrictions> On August 16, 2024, federal agencies released their “Spring 2024” Unified Regulatory Agenda detailing the regulations that they are developing over the next several months as well as long-term actions planned over the next few years. The agenda include the US Environmental Protection Agency’s (EPA’s) and the US Department of Defense’s (DOD’s) numerous important upcoming actions on chemicals and products containing these chemicals that will have significant implications for the regulated community. Will Treasury Use Energy Tax Credits to Assist PFAS-Impacted Communities?<https://natlawreview.com/article/will-treasury-use-energy-tax-credits-assist-pfas-impacted-communities#google_vignette> Proposed tax regulations to be released this year may clarify whether agricultural land contaminated with per- and polyfluoroalkyl substances (PFAS) qualify for a federal tax credit that would incentivize renewable energy projects on contaminated land. EPA Pumps the PFAS Brakes by Postponing the Reporting Deadline for Past PFAS Use in Consumer Products by Eight Months<https://natlawreview.com/article/epa-pumps-pfas-brakes-postponing-reporting-deadline-past-pfas-use-consumer-products> The US Environmental Protection Agency (EPA) has just announced an eight-month postponement of the start of a major reporting requirement for past use of per- and polyfluoroalkyl substances (PFAS) in consumer products due to its own reporting software issues. From JD Supra: Title V/Clean Air Act: Petition to Object Filed Addressing Allegheny County, Pennsylvania Resins Manufacturing Facility<https://www.jdsupra.com/legalnews/title-v-clean-air-act-petition-to-8954377/> The Environmental Integrity Project and other organizations filed a September 20th Title V Petition to Object (“Petition”) before the United States Environmental Protection Agency (“EPA”) Administrator related to Neville Chemical Company (“Neville”). The End of Chevron Deference Could Spell Trouble for EPA’s PFAS “Hazardous Substance” Rule<https://www.jdsupra.com/legalnews/the-end-of-chevron-deference-could-6636622/> A recent Supreme Court ruling could further jeopardize EPA’s PFAS hazardous substance designation, as the agency is attempting to advance a novel use of delegated legislative authority to further regulate PFAS chemicals. Navigating the PFAS Landscape: Emerging Trends in Litigation<https://www.jdsupra.com/legalnews/navigating-the-pfas-landscape-emerging-6228593/> The per- and polyfluorinated substances (PFAS) landscape is rapidly developing as manufacturers and sellers of consumer products face increased litigation. One emerging pattern is lawsuits alleging a failure to disclose the presence of PFAS in products and the potential targeting of products that advertise to be high quality or natural. Additionally, plaintiffs’ testing for PFAS has come under scrutiny, resulting in dismissals. New Hampshire PFAS Bill Signed into Law<https://www.jdsupra.com/legalnews/new-hampshire-pfas-bill-signed-into-law-5716235/> On August 2nd, Governor Chris Sununu of New Hampshire signed into law House Bill 1649, which bans the sale of certain products with intentionally added PFAS effective January 1, 2027. Per- and polyfluoroalkyl substances (PFAS) are a class of widely used chemicals that are pervasive and persistent in the environment. Commonly used in consumer products for their stain- and water-resistant properties, PFAS are widely detected in drinking water across the United States. The restrictions do not cover unintentional contamination which may occur during manufacturing or shipping. Everything You Need to Know About PFAS Lawsuits Over Forever Chemicals<https://www.jdsupra.com/legalnews/everything-you-need-to-know-about-pfas-6478264/> Class actions and multidistrict litigation (MDL) concerning perfluoroalkyl and polyfluoroalkyl substances (PFAS) have led to massive settlements by chemical companies that have totaled in the billions of dollars, and that has only been to mitigate the damages that per and polyfluoroalkyl substances can cause. We are only beginning to see individual and consolidated lawsuits filed by victims against PFAS manufacturers who have actually suffered concrete harm from being exposed to these toxic PFAS chemicals. PFAS Drinking Water Standards: State-by-state Regulations - September 2024<https://www.jdsupra.com/legalnews/pfas-drinking-water-standards-state-by-3422774/> The regulation of per- and polyfluoroalkyl substances (“PFAS”) in drinking water remains one of the primary focuses for legislatures and agencies at both the state and federal levels. In April 2024, the United States Environmental Protection Agency (“EPA”) issued Maximum Contaminant Levels (“MCLs”) and Maximum Concentration Level Goals (“MCLGs”) for certain PFAS, establishing limits as low as 4 parts per trillion (“ppt”). Many states have already regulated PFAS compounds in drinking water but have done so in a variety of different ways, and at different levels. States Petition the USEPA To List Certain PFAS Compounds as Clean Air Act Hazardous Air Pollutants<https://www.jdsupra.com/legalnews/states-petition-the-usepa-to-list-1166147/> another step toward broader regulation of per- and polyfluoroalkyl substances (PFAS), on August 29, 2024, New Jersey, New Mexico, and North Carolina (the States) submitted a petition (Petition) urging the United States Environmental Protection Agency (USEPA) to list perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), and hexafluoropropylene oxide dimer acid (GenX or HFPO-DA)—all PFAS compounds—as hazardous air pollutants (HAPs) under Section 112 of the Clean Air Act (CAA), 42 U.S.C. § 7412. PFAS Discharges: Environmental Justice Community Action Network and Roseboro, North Carolina Landfill Enter into Proposed Judicial Consent Decree<https://www.jdsupra.com/legalnews/pfas-discharges-environmental-justice-5475815/> The Southern Environmental Law Center (“SELC”) on behalf of the Environmental Justice Community Action Network filed a Proposed Judicial Consent Decree (“CD”) in the United States District Court for the Eastern District of North Carolina addressing the Sampson County Landfill (“Landfill”) in Roseboro, North Carolina. Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|