Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals that contain nearly 5,000 different compounds. PFAS are ubiquitous and can be found in a variety of everyday products, including stain- and water-resistant fabrics and carpeting, cleaning products, cookware, paints, and fire-fighting foams.

While PFAS compounds remain largely unregulated at the federal level, the United States Environmental Protection Agency (“EPA”) has taken some steps to develop guidelines with respect to two PFAS compounds. In 2016, EPA issued drinking-water health advisories for the sum of PFOA and PFOS at 70 ppt. This remains the nonbinding standard for PFOA and PFOS at the federal level.

In the absence of federal standards, some states have developed their own PFAS drinking water standards. The following chart details state proposed and adopted drinking water standards or advisory levels for a variety of PFAS compounds.

Chart: State and Federal PFAS Drinking Water Standards – Updated 1/8/21

Sources: State & Federal PFAS Drinking Water Standards – Updated 1/8/21

On July 21, 2021, the U.S. House of Representatives passed the PFAS Action Act of 2011, requiring EPA to establish nationwide drinking water standards for PFOA and PFOS, two of the thousands of PFAS compounds.  EPA has previously established non-enforceable drinking water health advisories for PFOA and PFOS of 70 ppt.

The bill also requires EPA to designate PFOA and PFOS as “hazardous substances” under CERCLA within a year and determine whether the remaining PFAS compounds should be designated as hazardous substances within 5 years.  The bill further requires EPA to list PFOA and PFOS as hazardous air pollutants (HAPs) under the Clean Air Act and establish pretreatment standards and effluent limits for the compounds under the Clean Water Act.  Other measures in the bill limit industrial discharges of PFAS and restrict incineration of PFAS waste.

The bill now heads to the U.S. Senate, where an earlier version of the bill had passed in January 2021, but ultimately died.  There is currently no Senate version of the bill.

Illinois has become the latest state to issue formal Health Advisories for a number of Per- and Polyfluoroalkyl Substances (PFAS). The Health Advisories are for four compounds—Perfluorobutanesulfonic (PFBS) (140,000 parts per trillion “ppt”); Perfluorohexanesulfonic acid (PFHxS) (140 ppt); Perfluorooctanoic acid (PFOA) (2 ppt); and Perfluorohexanoic acid (PFHxA) (560,000 ppt)—and the Illinois Environmental Protection Agency (EPA) was required to issue them after each chemical was detected in at least one public water system in the state.

Notable among the four Health Advisories is the 2 ppt level set for PFOA. In comparison, the Federal Health Advisory for PFOA is 70 ppt, which the U.S. EPA determined in 2016 was the level “at or below which adverse health effects are not anticipated to occur over a lifetime of exposure.” See 81 FR 33250 . 2 ppt is lower even than the relatively conservative drinking water standards set for the compound is states like Michigan (8 ppt) and New York and California (10 ppt).

Although the Health Advisory levels are not enforceable standards, they are legally significant. Where the Illinois EPA has issued a Health Advisory for a substance like these for which there is no enforceable groundwater standard, the State is required to consider the advisory level in a number of circumstances, including (1) when establishing groundwater cleanup or action levels following a release; (2) when determining whether a community water supply is taking its water from a source consistent with State siting requirements; and (3)during any rulemaking to set an enforceable standard. See 35 Il. Admin Code. § 620.601.

Does this mean Illinois is poised to enact the most stringent PFAS regulations in the country? Probably not. Under the Biden administration, The U.S. EPA will almost certainly be rolling out enforceable Maximum Contaminant Levels (MCLs) for various PFAS chemicals, including PFOA, in the near future. And that will likely take the pressure off Illinois and other states to put separate, more stringent standards into place. But these Health Advisories do reflect the seriousness with which state agencies are taking PFAS issues, and also how far views of what levels of PFAS are safe has come in the last several years, at least in some circles.

On December 18, 2020, the U.S. Environmental Protection Agency (EPA) released its Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) and Materials Containing Perfluoroalkyl and
Polyfluoroalkyl Substances (PFAS).  The Interim Guidance is not a rule or statement of policy, but presents currently available information on PFAS destruction and disposal, as well as highlights the significant uncertainties and critical need for research and development on these topics.  EPA also does not address what concentration of PFAS would require destruction or disposal in this guidance document, leaving that for future regulatory action.

The Interim Guidance focuses on three technologies that may be effective to destroy or control migration of PFAS in the environment and are commercially available, including thermal treatment (incineration, kilns), landfilling and underground injection.  The guidance applies specifically to destruction and control technologies for the following six categories of PFAS and PFAS-containing non-consumer materials: (1) aqueous film-forming foam (for fire fighting);
(2) soil and biosolids; (3) textiles, other than consumer goods, treated with PFAS; (4) spent filters, membranes, resins, granular carbon, and other waste from water treatment; (5) landfill leachate; and (6) solid, liquid, or gas waste streams from facilities manufacturing or using PFAS.

EPA acknowledges that there are significant gaps in the current state of knowledge and identifies specific research and development activities that are needed to inform future guidance.  The Interim Guidance document is just as much an informational document as a plea for help, as it seeks information from outside entities that are willing to share it.

EPA is accepting comments on the Interim Guidance until February 22, 2021.  Information on how to submit comments can be found here.  Updates on EPA’s PFAS research are available here.

The Trump administration’s EPA has again finalized changes to the CCR Rule. The most recent rule change—”Part B”—provides an exception to the Rule’s mandate that all unlined impoundments close on or before April 11, 2021. If the rule stands—a big if, for several reasons explained below—certain unlined impoundments may be permitted to continue to operate indefinitely, even despite certain groundwater contamination exceedances. Part B requires a demonstration that the impoundment’s natural lining (or other lining not consistent with the Rule’s definition) is sufficiently impermeable that there is “no reasonable probability that releases throughout the active life of the CCR surface impoundment will result in adverse effects to human health or the environment.”

In its original version, the CCR Rule drew an absolute distinction between lined and unlined impoundments, but included in the definition of lined impoundments units with compacted soil “liners” with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second. That portion of the rule was challenged and found to be unlawful in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018). In response to that decision, EPA ditched the categorical inclusion of certain soil-lined impoundments in the “lined” impoundment category, but created a process by which any impoundment that can make an “Alternate Liner Demonstration” may be treated, in effect, as “lined.”

Under Part B, any facility owner may seek to make an “Alternate Liner Demonstration” through a two-step process. In the first step, the facility submits an application demonstrating that it meets certain minimum requirements, a process “designed to ensure that it is likely a facility will ultimately be able to make the more extensive demonstration to support continued operation.” EPA anticipates acting on these applications by April 11, 2021, the date on which these impoundments would otherwise be required to close. The second step is more intensive and requires a host of site-specific data and analyses to prove the impoundment “can sustain its current performance and operate safely for the remainder of its active life.”

The rule is controversial for several reasons. First, despite the D.C. Circuit’s decision in Utility Solid Waste Activities Group, which was a victory for the environmental groups that challenged portions of the rule, Part B expands the number of unlined units that might continue to operate indefinitely (at least potentially). Second, the two step process might allow certain basins to operate at least past the otherwise applicable April 11, 2021 closure date, even if they are not ultimately successful in making an Alternate Liner Demonstration.

It is far from certain that Part B will remain part of the CCR Rule. Legal challenges are almost guaranteed. The Sierra Club, which is among the groups that challenged the initial CCR Rule as not going far enough to protect groundwater, has already criticized Part B as “another rollback of clean water protections, which will allow utilities to keep dumping enormous quantities of toxic coal ash into unlined, leaking, and structurally unsound coal ash ponds.” Because Part B, at least to some, degree moved the CCR Rule in the opposite direction the Utility Solid Waste Activities Group court suggested was required, the litigation has at least some chance of success (although EPA justifies the rule by contending it has added to the record assessed by the Utility Solid Waste Activities Group court). Perhaps as important, if the rule is tied up in litigation and a Biden administration takes over EPA, it is hard to see Part B surviving or being used. Part B is therefore just one more way in which the long-term fate of CCR is far from settled.

We will continue monitor the status of the CCR Rule. If you have any questions about this post or would like more information, please contact Ryan Rudich (; (312) 360-6379) or another member of Freeborn’s Environment and Energy Practice Group.

The U.S. Environmental Protection Agency (“EPA”) recently announced that it will be extending its COVID-19 Implications for Signing Paper Hazardous Waste Manifests policy (“Temporary COVID-19 Manifest Signature Policy” or “Policy”) until November 30, 2020.

On May 18, 2020, EPA issued its Temporary COVID-19 Manifest Signature Policy concerning how handlers of hazardous waste can address generator signatures on paper hazardous waste manifests during the COVID-19 pandemic. This Policy provides that if obtaining a generator signature on a paper manifest is not reasonably practicable, entities can use the electronic manifest. If the electronic manifest is not a viable option, then the Policy details steps that must be taken by both the transporter and generator. The Temporary COVID-19 Manifest Signature Policy was set to expire on August 31, 2020. EPA is extending the Policy, however, in light of some states experiencing an increase in COVID-19 cases following efforts to reopen.

EPA was contacted by handlers of hazardous waste regarding the need for continued social distancing for regulated parties obtaining “wet” signatures on paper hazardous waste manifests. Given the recent spike in COVID-19 cases, handlers believe continued social distancing is necessary to protect truck drivers and facility personnel. Therefore, EPA concluded that the Temporary COVID-19 Manifest Signature Policy should continue to be available, subject to a few changes.

EPA’s announcement contains three changes from the May 18, 2020 Temporary COVID-19 Manifest Signature Policy: (1) shortening the phrase transporters or designated facilities should write in Box 15, for generator signature, to address space limitations on the manifest form; (2) changing the reference to the EPA policies about signatures on manifests during the COVID-19 public health emergency in the generator’s signature substitute; and (3) removing language referencing the Temporary COVID-19 Enforcement Policy regarding how generators and transporters should maintain documentation.

Going forward, if obtaining a generator signature on a paper manifest is not reasonably practicable, entities should still use the electronic manifest. If the electronic manifest is not a practical option, however, then the following steps must be taken:

  1. The transporter should write the name of the generator in Box 15 and, under “Signature,” should write “COVID-19 signature substitute” or abbreviated as “COVID-19 sig. sub.”;
  2. The generator should provide a signature substitute in a(n) cell phone text message, email, or hard copy letter mailed to the transporter and designated facility. The generator should use one document/transmittal to cover all manifest activities per transporter/designated facility throughout the duration of this temporary policy; and
  3. The transporter or designated facility should write in Box 14 of the manifest “documentation for generator signature substitute available upon request.”

Generators and transporters taking the steps outlined above should maintain this documentation for three years from the last shipment needing a signature substitute.

When the Policy is terminated on November 30, 2020, transporters and generators should expect to return to compliance with pre-COVID-19 signature requirements for paper hazardous waste manifests.

In the wake of the COVID-19 pandemic, the U.S. Environmental Protection Agency (EPA) has suspended requirements for state agencies to perform on-site compliance inspections in favor of off-site monitoring alternatives.

In a recent letter, the EPA Office of Enforcement and Compliance Assistance announced that state environmental protection agencies must continue with their required planned inspection commitments of businesses under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Toxic Substances Control Act (TSCA); Safe Drinking Water Act(SDWA), Clean Air Act (CAA); Clean Water Act (CWA); Resource Conservation and Recovery Act (RCRA); and Underground Storage Tank programs. Instead, EPA will allow state agencies to meet inspection requirements through alternative means including: postponing inspections until they are determined to be safe when possible, using off-site compliance monitoring, and off-site inspections. Although EPA stated that “Remote Video Partial Compliance Evaluations” may be used to determine non-compliance with requirements and for identifying inspection priorities, it is still uncertain exactly how off-site compliance monitoring and off-site inspections might work.

The important take away is that state environmental compliance inspections of regulated facilities will occur as planned in 2020 and 2021, but may be delayed or performed remotely. It remains uncertain exactly how remote inspections will proceed and what techniques may be used to ensure their validity.

The United States Environmental Protection Agency (“EPA”) recently announced that it will be terminating its temporary enforcement discretion policy on August 31, 2020 at 11:59 PM Eastern Daylight Saving Time. In general, this means that EPA will not base any exercise of enforcement discretion on this temporary enforcement discretion policy for any noncompliance that occurs after August 31, 2020.

EPA issued its temporary enforcement discretion policy on March 26, 2020 stating its intent not to bring enforcement actions for a range of violations of environmental regulations caused by COVID-19. Until August 31, 2020, EPA’s policy is that it will continue exercising this discretion and will “consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”

In selecting the termination date, EPA took into consideration the new federal guidelines and directives that have been issued to support the public health response and economic recovery efforts, as well as the lifting of state and local restrictions. EPA expects that the restrictions impacting regulatory compliance will likewise be lifted and will reduce the circumstances in which the temporary enforcement discretion policy may apply.

EPA recognizes, however, that in certain circumstances, it may need to continue exercising enforcement discretion even beyond August 31. The Termination Addendum provides that “[n]othing herein limits the ability of the EPA to exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency, before or after the temporary policy is terminated.”

Notwithstanding, regulated entities that have taken advantage of EPA’s temporary enforcement discretion policy should prepare to resume compliance activities by August 31, 2020. Additionally, regulated entities should continue to monitor EPA guidance and any state-specific enforcement discretion policies that have also been issued in response to COVID-19.

If you have any questions about EPA’s temporary enforcement discretion policy or how COVID-19 is affecting enforcement actions, please contact Hannah Vanderlaan (; (312) 360-6487) or another member of Freeborn’s Environment & Energy Practice Group.

In Monday’s split decision, the U.S. Supreme Court held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) (i) does not preclude owners of contaminated property from pursuing state law claims for nuisance, trespass and strict liability, but (ii) requires EPA approval of any remedial action conducted on the landowners’ property.

For nearly a century, the Anaconda Copper Smelter in Butte, Mon­tana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, EPA worked with the current owner of the now-closed smelter, Atlantic Richfield Company, to implement a cleanup plan for a remediation expected to continue through 2025. In 2008, a group of 98 landowners sued Arco in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on prop­erty rehabilitation. The landowners’ proposed restoration plan exceeded the measures found necessary to protect human health and the environ­ment by EPA. For instance, the landowners’ restoration plan included much more stringent contaminant cleanup levels. Ultimately, after many years of litigation and appeals, the Montana Supreme Court rejected Arco’s argument that Section 113 of CERCLA stripped the Montana courts of jurisdiction over the landowners’ claims and concluded that the landowners were not potentially responsible parties pro­hibited from taking remedial action without EPA approval under §122(e)(6) under CERCLA.

In rejecting Arco’s jurisdictional argument (and agreeing with the Montana Supreme Court), the Supreme Court noted that “[o]ften the simplest explanation is the best: Section 113(b) deprives state courts of jurisdiction over cases “arising under” the Act—just as it says—while §113(h) deprives federal courts of jurisdiction over certain “challenges” to Superfund remedial ac­tions—just as it says.” In other words, Section 113(b) applies only to cases under CERCLA (not state law claims) and Section 113(h) applies only to the jurisdiction of federal courts to challenge CERCLA remedial actions.

The Supreme Court did however agree with Arco’s argument (contrary to the Montana Supreme Court) that the claimant landowners were potentially responsible parties under CERCLA and, pursuant to Section 122(e)(6), must seek EPA approval to take remedial action on their property. Again, the Supreme Court eschewed a more complex reading of the statute and found that Section 107’s straight-forward language controlled. “Because arsenic and lead are hazardous substances that have ‘come to be located’ on the landowners’ properties, the landowners are po­tentially responsible parties,” under Section 107’s definition of a covered person as an “owner” of a “facility.” The Supreme Court also rejected the landowners’ argument that they were not potentially responsible parties because CERCLA’s limitations period had run.

The Supreme Court’s ruling appears to clear the runway for certain state statutory and common law claims even where the Superfund process has begun, including the implementation of a final remedy. A copy of the opinion can be found here.