In our May 2, 2024, blog, we discussed the “slew” of major environmental regulations (slew was the term used by the news firm, Reuters). The new environmental regulations left the regulated community scrambling to understand how these changes would affect them.
Not surprisingly, some of these rules are being challenged in court. Below, we provide a brief update on some of the challenges.
Risk Management Plan Challenged
As we covered in our March 22, 2024, blog, the US Environmental Protection Agency (EPA) greatly expanded the application of the Risk Management Plan (RMP) under the Clean Air Act. It is estimated that 12,000 facilities are affected by the new rule.
An industry group, Alliance for Chemical Distribution, et al (ACD) is challenging the new RMP rule and is asking a federal appellate court to “scrap” four aspects of the rule.
- The mandate requiring third-party audits
- The safer technology and alternatives analysis (STAA)
- The public transparency aspect (see press release statement below)
- The adoption of new generally accepted engineering practices (applicability of new recognized and generally accepted good engineering practices [RAGAGEP] by imposing a RAGAGEP gap analysis)
ACD states in a press release, “One of the rule’s most disturbing aspects is its potential to serve as a roadmap for terrorists aiming to weaponize chemical facilities. Under this rule, regulated facilities must disclose sensitive information to any individual residing, working, or spending significant time within a six-mile radius. The lack of a ‘need to know’ or vetting requirement for information requests will heighten the risk of sensitive chemical information falling into the wrong hands.”
“In addition, the rule will undoubtedly place additional financial strain on ACD members that are already compliant, particularly at a time when many are financially strained.”
The Primary Drinking Water Standards for specific PFAS are among the regulations being challenged (Image by Jonas KIM from Pixabay).
PFAS Primary Drinking Water Standard Challenged
American Water Works Association (AWWA) and Association of Metropolitan Water Agencies (AMWA) are challenging the EPA’s final National Primary Drinking Water Regulation of per- and polyfluoroalkyl substances (PFAS).
In the challenge, they state that the EPA “failed to adequately consider comments filed by the organizations and other stakeholders, and did not abide by all the requirements of the Safe Drinking Water Act during the development of the standard.”
In a June 10, 2024, brief by AMWA, they state, “Scientific process matters, especially when it will set precedent for how EPA develops future drinking water regulations. AMWA and AWWA therefore believe it is prudent to ask a court to verify that EPA constructed the PFAS regulation according to the letter and spirit of the Safe Drinking Water Act, and to give EPA an opportunity to revisit any components of the rule that fell short.”
According to Milliman, Inc., the cost of addressing PFAS in drinking water (based on the currently regulated parameters and maximum contaminant levels) is $120 billion to $175 billion.
PFAS CERCLA Designation Challenged
The Associated General Contractors of America, Inc., National Waste and Recycling Association, and the Chamber of Commerce of the United States filed a petition in the United States Court of Appeals for the District of Columbia challenging the EPA’s designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as Comprehensive Environmental Response Compensation and Liability Act (CERCLA) hazardous substances.
Among other issues, the group is challenging whether the EPA appropriately considered the cost before promulgating the rule. They are also challenging whether the EPA provided an adequate and reasonable explanation for their conclusion that PFOA and PFOS should be designated as hazardous substances.
EPA Underestimated Costs
According to an article by MG+M The Law Firm, “It is interesting that petitioners raise the costs associated with rule compliance, as the White House Office of Management and Budget (OMB) initially designated the rule as ‘other significant,’ based on EPA’s estimate that compliance costs would not exceed $100 million annually. Following feedback (particularly [US Chamber of Commerce’s] estimate of $700M-$900M in annual costs) that EPA woefully underestimated the costs associated with rule compliance, OMB changed its designation of the proposed rule to ‘economically significant,’ triggering the need for EPA to conduct a regulatory impact analysis (RIA) that demonstrates that such a designation is the least burdensome and most cost-effective way to achieve EPA’s goals—something it failed to do.”
With the above said, this may be the reason why the designation of additional PFAS by the EPA as hazardous substances has changed from April 2025 to “to be determined.”
Environmental Advice
Dragun Corporation has assisted the regulated community with environmental compliance, assessment/remediation, and litigation support since 1988. If you need assistance with an environmental issue, including litigation support, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
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.
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