The U.S. Environmental Protection Agency (EPA) took an important step toward regulating PFAS (per- and poly-fluoroalkyl substances) on September 6, 2022 when it published a Notice of Federal Rulemaking to begin the process of listing two PFAS as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as the “Superfund” law). Specifically, perfluorooctanesulfonate (PFOS) and perfluorooctanoic acid (PFOA), both of which have been identified as health hazards since 2016, are being reviewed. Comments on the proposal are due by October 6, 2022.
Olivier Theard is a partner specializing in environmental law, including regulatory advice and compliance, due diligence and transactions, administrative hearings, and litigation. He is also the Office Managing Partner for the Los Angeles office.
On April 2, 2019, the Federal Energy Regulatory Commission (“FERC” or “Commission”) determined that the one-year statutory limit on state review of interstate natural gas pipeline company applications for water quality certification was a bright-line deadline that could not be extended by private agreement. FERC found that the New York State Department of Environmental Conservation’s (“NYDEC”) failure to act within one year of receipt of a water quality certification application submitted by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (together, “National Fuel”) constituted waiver of the State’s authority under Section 401 of the Clean Water Act to make a final determination on the application. Section 401 limits such review to one year or less from the date of receipt of the application. The Commission rejected contentions by the NYDEC and Sierra Club that the NYDEC could extend the date by which it could act on a water quality certification application. The Commission’s Order will arguably restrict states’ ability to review water quality certification applications associated with interstate natural gas pipeline projects, may actually lead to uncertainty for entities proposing to construct such pipeline facilities, and will test the Commission’s interpretations of Section 401 and related case law.
Continue Reading FERC Holds the Line on One-Year Limit for State Review of Clean Water Act Certifications for Interstate Natural Gas Pipelines
On June 4, 2016, two new Los Angeles ordinances will go into effect under the Clean Up, Green Up (CUGU) initiative. The initiative aims to improve air quality and residential quality of life in areas with high concentrations of industrial uses. The new laws will impose additional citywide code requirements, and create new development standards in three CUGU Supplemental Use Districts: Boyle Heights, Wilmington, and Pacoima/Sun Valley.
Continue Reading New LA Ordinances “Clean Up, Green Up” Industry in Residential “Toxic Hotspot” Neighborhoods
On October 15, 2013, the United States Supreme Court granted certiorari to review six of the nine submitted petitions stemming from an appellate court ruling upholding Environmental Protection Agency (“EPA”) greenhouse gas (“GHG”) controls at utilities, factories and other facilities around the country. Specifically, the challenged appellate ruling from the Court of Appeals for the District of Columbia Circuit unanimously upheld EPA’s GHG emission endangerment findings, rebuffed challenges to the EPA’s tailpipe rule for automobile emissions and its applicability to stationary sources, and determined the EPA was “unambiguously correct” in using existing federal law to address global warming. However, the Supreme Court’s review will be more limited than some petitioners sought and should not jeopardize the Obama administration’s larger climate-change agenda.
Continue Reading Supreme Court Grants Limited Review of GHG Emissions Regulations
On August 28, 2013 the California Office of Administrative Law (“OAL”) approved California Department of Toxic Substances Control’s (“DTSC”) Safer Products Regulations. These regulations will go into effect on October 1, 2013. These important regulations, also referred to as “Green Chemical” regulations, establish a process to identify and prioritize consumer products containing chemicals of concern, permit evaluation of safer alternatives and provide for the potential imposition of product or chemical restrictions by DTSC. The legislative purpose of the regulations is to implement California Assembly Bill 1978, or the “Green Chemistry” law, enacted in 2008. (Health and Safety Code §§ 25215-25257.1.) The regulations have been five years in the making, and are the result of several prior drafts and multiple public comment periods. The consequences of these unprecedented regulations are far reaching, and carry the potential to affect a wide range of consumer products placed into the national stream of commerce.
Continue Reading California Passes Landmark Green Chemical Laws
Hydraulic fracturing continues to increase, but regulations have lagged behind the practice. Hydraulic fracturing (sometimes called well stimulation treatment) is used as means to extract and explore underground oil and gas. SB 4 is an attempt by California legislature to regulate and oversee the practice of hydraulic fracturing, or “fracking,” and other well stimulation treatments. SB 4 imposes requirements on oil and gas well operators and suppliers, and involves multiple regulatory state and district agencies such as the Department of Toxic Control Substances (“DTSC”), the State Air Resources Board, and the State Water Resources Control Board, the Division of Oil, Gas, and Geothermal Resources (the “Division”), and the Natural Resources Agency.
Continue Reading Governor Brown Signs SB 4 Regulating Hydraulic Fracturing Well Stimulation Treatments