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Chemours Challenges the EPA GenX Drinking Water Health Advisory, with a Surprising Argument: the Nondelegation Doctrine

Posted by Jeffrey Karp on 8/1/22 1:14 PM

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its ammonium salt, collectively known as GenX. On July 14, 2022, Chemours, which manufactures GenX, petitioned the United States Court of Appeals for the Third Circuit for review of the GenX health advisory. In its filing, Chemours argued that the health advisory was “arbitrary and capricious” by challenging EPA’s scientific assumptions, but Chemours also made a more radical argument: “The manner in which EPA has used its Safe Drinking Water Act authority to issue health advisories violates constitutional requirements, including the nondelegation doctrine, because EPA has utilized unfettered discretion to publish health advisories,” and had thus affected “the legal rights and obligations of companies, water utilities, and others across the country without sufficient legislative direction or regulatory safeguards.”[1]

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Topics: EPA, GenX, Safe Drinking Water Act

U.S. EPA's Interim Guidance on PFAS Destruction and Disposal Lacks Adequate Precision

Posted by Jeffrey Karp on 1/20/21 1:31 PM

Authors: Jeffrey Karp and Edward Mahaffey, Sullivan & Worcester LLP; Graham Ansell, PhD and Brett Winters, PhD, GSI Environmental, Inc.

Section 7361 of the National Defense Authorization Act ("NDAA") for Fiscal Year 2020 requires the US Environmental Protection Agency (EPA) to "publish interim guidance on the destruction and disposal of perfluoroalkyl and polyfluoroalkyl substances and materials containing perfluoroalkyl and polyfluoroalkyl substances," reflecting increasing concern about the human health risks posed by these substances, commonly known as PFAS. On December 18, 2020, the EPA issued the interim guidance document, on which it will accept public comments until February 22, 2021.[1] However, as discussed below, the guidance appears to be prematurely issued, given EPA’s uncertainty throughout in advising on the likely efficacy of various PFAS disposal and destruction methods.

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Topics: EPA, PFAS

U.S. EPA’s COVID-19 Based Discretionary Civil Enforcement Policy and Guidance on Timing of Performing Field Work

Posted by Jeffrey Karp on 4/23/20 3:46 PM

The COVID-19 pandemic has disrupted many business and governmental activities, and environmental compliance is no exception. In recognition of the potentially negative impacts of the pandemic on stakeholders’ ability to meet environmental compliance and remediation obligations, the U.S. EPA has recently issued both (i) a Policy concerning the discretionary enforcement of civil violations of laws, regulations and permits, and (ii) a Guidance concerning the timing of field work for remedial investigations and cleanup activities under CERCLA as well as corrective measures under RCRA.

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Topics: EPA, COVID-19

Absence of Broad-Based Congressional or U.S. EPA Actions Limiting PFAS Exposure Likely to Engender Continued State Regulation

Posted by Jeffrey Karp on 1/3/20 5:04 PM

By Jeffrey M. Karp, Edward Mahaffey and Graham Ansell

Despite extensive negotiation, insufficient bipartisan support was garnered to obtain inclusion of robust PFAS provisions in Congressional year-end spending legislation. Initially, there was some expectation that U.S. EPA might be directed in the National Defense Authorization Act (NDAA) to establish maximum contaminant levels (MCLs) for per- and polyfluoroalkyl substances (PFAS) in drinking water, and/or to designate PFAS as hazardous substances under CERCLA, but those proposals were not included in the legislation. In the absence of a Congressional mandate or U.S. EPA regulatory action establishing enforceable clean-up standards, states concerned about the potential negative health effects of exposure to PFAS compounds have taken matters into their own hands. As discussed, to fill the federal government void, states have set MCLs for certain PFAS compounds in drinking water, required testing of water systems and publication of results, and established remediation requirements for certain PFAS compounds in groundwater and surface water.

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Topics: EPA, PFAS

PFAS Regulation Update

Posted by Jeffrey Karp on 3/6/19 10:13 AM

EPA Steps into the Mix While States Continue Swift Action in Light of Potential Health Risks

By: Jeffrey Karp and Kevin Fink

In a prior posting, we noted the proliferation of state legislative and regulatory activity involving Per- and polyfluoroalkyl substances (PFAS), a class of man-made chemicals used for over 70 years in a variety of products, such as nonstick cookware, firefighting foam, waterproofing and stain-resistant coatings, and in industrial manufacturing. Measured concentrations of legacy PFAS chemicals are stable and do not degrade very rapidly in the environment. PFAS like perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonate ("PFOS") in groundwater and drinking water sources have been associated as possible links to negative impacts on human health, including decreased fertility rates, increased risk of certain cancers and impaired immune system function.

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Topics: EPA, PFAS, Hazardous Substances

Legislative Update: House of Representatives Introduces Bill to Require EPA to Regulate PFAS as Hazardous Substances under CERCLA

Posted by Jeffrey Karp on 1/16/19 1:37 PM

By Jeffrey Karp and Kevin Fink

In a recent article posted by Manufacturing Today, we discussed the unexpected risks facing manufacturers of products containing Per- and polyfluoroalkyl substances (PFAS). PFAS are a class of more than 3,000 man-made chemicals that are receiving heightened public awareness due to concerns about their potential negative impact on human health and the environment.

In addition to the commencement of litigation and the promulgation of PFAS regulations in a number of states, two bills were introduced in the Senate during the last session of Congress that: (1) sought to “encourage” Federal - State cooperative agreements to address removal and remedial actions; and (2) to require the United States Geological Survey (“USGS”) to perform a nationwide survey of the extent of these ubiquitous contaminants.[1] 

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Topics: EPA, PFAS, CERCLA, Hazardous Substances

Confluence of Emissions Regulations Favor Renewable Energy Investment (Part 1)

Posted by Administrator on 5/23/16 3:39 PM

GOP Presidential Candidate Donald Trump made several sweeping promises while on the campaign trail vowing to reopen shuttered mines and bring coal back to its dominance of a decade ago. These promises, however, are dated as the coal industry continues to face multiple hurdles: (1) greater availability of affordable natural gas and renewable resources; (2) stricter emissions standards for fossil-fuel fired electricity generating sources; and as a result, (3) reluctance in the investor community to finance new coal projects.  What candidates on both sides of the political spectrum could say is that, although the mines will close, the country remains dedicated to training displaced miners to work in a new renewable energy future.

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Topics: Renewable Energy, clean power plan, Environmental Protection Agency, EPA, renewable energy investment, new stationary source rule, existing stationary source rule

U.S. EPA Earns Early Victory in Opponents' Challenge to Clean Power Plan

Posted by Jeffrey Karp on 1/22/16 5:47 PM

On January 21, the United States Environmental Protection Agency (U.S. EPA) won an initial victory as the D.C. Circuit refused to grant opponents a stay of the Clean Power Plan (CPP or Rule).

The Rule, promulgated pursuant to section 111(d) of the Clean Air Act (CAA), limits carbon dioxide emissions from existing fossil fuel fired electric generating plants (generating units).  The CPP’s goal is to cut emissions by 32 percent from 2005 levels by 2030, and each state is provided an emissions reduction target. Qualifying state emissions reductions under the Rule generally prompt the retirement of coal plants and the greater adoption of natural gas and renewable resources.  States must submit their implementation plans (SIP) in 2016 demonstrating that they will achieve the requisite emissions reduction by 2022, or request a two-year extension. However, if a state fails to submit an adequate implementation plan by the 2016 due date or request an extension for plan development until 2018, U.S. EPA will assign a federal implementation plan (FIP) that will enable that state to meet its emissions reduction target.

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Topics: Carbon Emissions, CPP, Clean Power, clean power plan, Environmental Protection Agency, EPA, State of West Virginia v. EPA, EPA Victory, West Virginia, Stay of the Rule, Climate change, Clean Air Act, Section 111(d), Global Warming, Greenhouse Gas Emissions, Stay

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The Environment & Energy Insights blog analyzes developments in the law, as well as provides updates and perspectives on trends and polices.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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