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Drinking Water Suppliers Face Challenges After EPA Establishes Near Zero Health Advisory for PFAS

Drinking water systems that supply tap water need to begin preparing for how they will meet new National Drinking Water Standards set for proposal in Fall 2022 based on EPA’s recently issued Interim Health Advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) near zero. On June 15, 2022, EPA announced a new Interim Lifetime Health Advisory for PFOA at 0.000000000000004 g/L (4 parts per quadrillion) and for PFOS at 0.000000000000020 g/L (20 parts per quadrillion) in tap water.

EPA’s new advisory level is thousands of times more stringent than EPA’s 2016 Health Advisory of PFOA and PFOS at 70 parts per trillion and the Agency for Toxic Substances and Disease Registry’s current risk levels for PFOA: 78 ppt (adult) and 21 ppt (child), and PFOS: 52 ppt (adult) and 14 ppt (child).  And the new levels are significantly below any current laboratory detection or quantification limits, currently around 2 ppt.  Consequently, it defies logic how EPA expects drinking water supply systems to even currently assess PFAS levels in relation to the newly released levels.

Back to the Past: NEPA Rule Changes Restore Provisions

On April 20, 2022, in the first leg of a two-phase process, the Council on Environmental Quality (CEQ) issued its final rule amending its regulations for implementing the National Environmental Policy Act (NEPA).  To be effective May 20, 2022, the amendments restore provisions that were in effect for forty-two years before being modified in 2020 by the Trump administration. These “Phase 1” changes focus on the (a) purpose and need of a proposed action, (b) an agency’s NEPA procedures for implementing the rules, and (c) the definition of “impacts’ and “effects.”

OSHA to Publicize Employers’ Injury and Illness Data Under Proposal, Announces Separate Enforcement Focus

With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA.  On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41.  OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.

SEC to Require Disclosure of Climate-Related Risks and Greenhouse Gas Emissions, Citing Investor ESG Demand

Publicly traded companies will be required to disclose climate-related risks to investors under a newly announced U.S. Securities and Exchange Commission (SEC) proposed rule.  On March 21, 2022, the SEC announced proposed rule amendments regarding disclosure of climate-related risks and impacts from greenhouse gas emissions (GHG).  Citing the growing demand from investors regarding environmental, social, and governance (ESG) issues, and what the SEC calls “fragmented and inconsistent” disclosure requirements, the SEC’s proposed rule amendments will be issued in the Federal Register in the coming weeks for public comment.

EPA Issues Guidance Addressing Implementation of $43 Billion Water Infrastructure Funds

On March 8, 2022, the U.S. EPA issued a memorandum to guide equitable funding decisions to support the agency’s purpose in providing flexibility to local water treatment providers and increasing investments in disadvantaged communities.  Water treatment providers, municipalities, and other entities seeking to obtain and procure infrastructure funding will want to carefully review and consider EPA’s guidance.

Environmental Enforcement in Colorado

The EPA and Colorado Partnership For Environmental Justice

Colorado focuses on environmental justice as a core priority. In 2021, Governor Polis signed the Environmental Justice Act (HB21-1266) into law, and subsequently appointed members to Colorado’s first Environmental Justice Advisory Board. The Colorado Department of Public Health and Environment (CDPHE) then launched the new Environmental Justice Action Task Force and the agency created a new Environmental Justice Unit to reduce environmental health disparities for communities of color and low-income communities across Colorado.

Challenge to Colorado Air Quality Rules Dismissed

Weld County Lacks Standing to Challenge New Oil and Gas Air Rules

On February 24, 2022, a division of the Colorado Court of Appeals upheld a district court’s dismissal of a challenge to regulations issued by the Colorado Air Quality Control Commission (“Commission”) which address oil and gas operations.  In Bd. of Cnty. Comm’rs v. Ryan, the appellate court addressed whether Weld County had standing to seek judicial review of the air quality rules. See opinion here.

EPA Issues Enforcement Alert Targeting Warehousing and Distribution Facilities Storing Chemicals

Companies that manage chemicals in warehousing, distribution, and logistics facilities remain a high-priority enforcement focus of the U.S. Environmental Protection Agency, as reflected in the recently issued Enforcement Alert.  Citing the agency’s current National Compliance Initiative entitled “Reducing Risks of Accidental Releases at Industrial and Chemical Facilities,” the Enforcement Alert reminds businesses that process, formulate, blend, re-package, store, transport, and market chemical products must adhere to a variety of federal EPA rules and the consequences for the failure to do so.

Decision by Army Corps Could Affect Development Projects With Wetlands or Waterbodies, Effectively Voiding Previous Jurisdictional Determinations

In a January 5, 2022, press release, the U.S. Army Corps of Engineers announced it will not make permitting decisions based on certain Approved Jurisdictional Determinations (AJDs) rendered under the 2020 Navigable Waters Protection Rule or NWPR, which was the Trump Administration’s regulatory definition of Waters of the United States (often referred to as “WOTUS”).  AJDs provide the Corps’ project-based regulatory determinations whether certain development and construction projects impact WOTUS and, therefore, require Clean Water Act 404 permits to authorize such impacts.  Because the NWPR was thought to reduce the number and extent of water bodies subject to Clean Water Act regulation and the durability of the NWPR was uncertain, the conventional wisdom was to request AJDs while the NWPR was in effect, allowing developers to lock in a more favorable AJD and thereby reduce potential constraints and mitigation work required for development activities impacting WOTUS.  However, as a result of the Corps’ change of direction, general contractors, property owners, developers, and related construction companies that followed the conventional wisdom will need to pay careful attention for any projects for which a 404 permit has not been issued.

Supreme Court Issues Vaccination Mandate Decisions: Where We Stand Today

Big Picture

Today the United States Supreme Court issued a decision staying implementation and enforcement of the Emergency Temporary Standard (“ETS”) issued by the federal Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to adopt policies mandating COVID-19 vaccination and testing, at least while legal challenges to the ETS proceed through lower courts.  This means that for now, employers covered by the federal ETS are not required to comply with it.

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