As we have noted in our recent blogs, there has been a flurry of environmental regulatory activity. According to Reuters, the reason for this push is the pending presidential election this fall.
From Reuters, “The Biden administration is racing to finalize a slew of major environmental regulations to help safeguard them from potential reversal should former President Donald Trump win the 2024 presidential election.” These rules need to be in the Federal Register before May 22, 2024, to prevent the new Congress from having the power to nullify the regulations with a simple majority.
Below is a summary of some of the recent environmental regulatory activity with links to the corresponding blogs.
Clean Water Act – Facility Response Plan (FRP)
Clean Water Act – Facility Response Plan: The rule expands the application of the Facility Response Plans to include more facilities. Previously, the FRP rule applied to facilities that stored oil and were adjacent to or near waterways. The rule now applies to construction, agriculture (and supporting activities), mining, and more. The new rule also allows the Environmental Protection Agency (EPA) regional administrator to consider environmental justice when applying the rule. The rule takes effect May 28, 2024, and has a 36-month implementation period. The FRPs must be updated every 5 years.
Per and Polyfluoroalkyl Substances (PFAS)
PFAS – Toxic Substance Control Act
Required PFAS Reporting under the Toxic Substance Control Act (TSCA): The rule requires a retrospective evaluation of PFAS chemicals. Under this rule, regulated entities are required to submit a report relating to the manufacture and import of PFAS chemicals for each year for which PFAS or PFAS-containing articles were manufactured between January 1, 2011, and December 31, 2022. There are no exemptions for small businesses or de minimis usage. The deadline for reporting under this new rule is May 8, 2025, or November 10, 2025, depending on certain conditions.
PFAS – Safe Drinking Water Act (SDWA)
SDWA PFAS MCLs: The establishment of Maximum Contaminant Levels (MCLs) for specific PFAS will directly impact public water systems. It will eventually affect state and federal clean-up standards.
PFAS – Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
The listing of specific PFAS as CERCLA hazardous substances will affect disposal costs for PFAS-containing materials and wastes, will likely lead to more sites being listed as Superfund sites, and increase litigation as Potentially Responsible Parties (PRPs) are identified. It will also affect environmental due diligence as specific PFAS will potentially be Recognized Environmental Conditions.
In an attempt to clarify and perhaps mollify some, two days after listing the PFAS as CERCLA hazardous substances, the EPA released a memorandum, “PFAS Enforcement Discretion and Settlement Policy under CERCLA.”
The EPA continues to state that it will not pursue municipal landfills, agriculture sites with a history of biosolid application, publically-owned treatment works, and other municipal sites. Nonetheless, private parties who are now liable under CERCLA for PFAS “contamination” will potentially find themselves “on the hook” for PFAS remediation. These private parties can and likely will look to all PRPs to share in the liability (see “EPA Issues PFAS Enforcement Discretion Policy Addressing Environmental Cleanup Liability”).
New rules under TSCA, CWA, CERCLA, RCRA, SDWA and more are beginning to pile up (image purchased from Shutterstock).
PFAS – Resource Conservation and Recovery Act (RCRA)
The proposed changes to RCRA to include PFAS will also affect waste management. The changes to RCRA would add nine PFAS to the list of hazardous constituents under 40 CFR Part 261 Appendix VII. The second proposed amendment to RCRA would broaden the definition of a hazardous waste subject to corrective action at TSD facilities.
On our PFAS Resource Page, we list regulatory developments specific to PFAS.
Clean Air Act
Clean Air Act Risk Management Plan: On March 11, 2024, the EPA released the “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention.” It is estimated that the rule will affect 12,000 facilities. The regulations contain requirements, such as notification and coordination with local responders in the event of chemical emergencies, and the obligation for some facilities to submit a risk management plan. The rule becomes effective May 10, 2024.
Security and Exchange Commission (SEC) – Climate Disclosure
The SEC’s, “The Enhancement and Standardization of Climate-Related Disclosures for Investors,” was adopted on March 6, 2024. This rule states “certain disclosures related to severe weather events and other natural conditions will be required in a registrant’s audited financial statements.”
The rule requires public companies to disclose information covering climate-related risks; identification, oversight and management of such risks; the impact of those risks on the business; climate-related targets and goals; data relating to a company’s greenhouse gas (GHG) emissions; and climate-related capitalized costs, expenditures, charges and losses, and impacts on financial statement estimates and assumptions (See Holland and Knight).
As part of the reports, companies will also need to provide certain information related to the key assumptions, data, and figures underlying their Scope 1 and Scope 2 data. The SEC requires attestation of emissions data. Scope 3 emissions were eliminated at the last minute, but some environmental groups are considering legal action to have Scope 3 emissions included.
The new rules apply to companies on a phased-in basis. The first compliance deadline for “large accelerated filers” is for fiscal year 2025 annual reports filed in 2026.
What Should You Do?
These new rules have both technical and legal considerations. Accordingly, we encourage you to speak with your legal counsel. If you would like to discuss the technical aspects and evaluate if/how these apply to your facility, contact Jeffrey Bolin, M.S., CHMM or Matthew Schroeder, M.S., P.E. at 248-932-0228, Ext 125 and 117, respectively.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Jeffrey Bolin, M.S., reviewed the blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
Matthew Schroeder, M.S., P.E., reviewed this blog. Matt is a senior environmental engineer at Dragun Corporation. Matt has advised industrial, commercial, municipal, and agricultural clients on environmental compliance for 30 years. Matt has defended violations under RCRA, SARA, CWA, and NPDES; prepared, reviewed, and implemented numerous emergency plans; and advised on discharge permitting compliance for a wide variety of industries. Matt is a frequent speaker, author, and expert witness See Matt’s bio.
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