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 (hvanderlaan@freeborn.com; (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.

 

In a matter of days, Americans have been asked to stay home as states across the country issue orders requiring non-essential businesses to cease operations. Given the essential public health role of the waste and recycling industries, however, these industries must continue service. This alert explores how the Department of Homeland Security and most states that have issued “stay at home” orders recognize the waste industry as an essential service, allowing the industry to continue operating during these unprecedented times.

Waste Industry Deemed “Essential Critical Infrastructure” by Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) has recognized solid and hazardous waste collection workers and wastewater treatment workers as part of the Essential Critical Infrastructure Workforce. This classification identifies workers who conduct operations and services that are essential to continued critical infrastructure and it is intended to help state and local officials as they contemplate how to protect their communities from COVID-19. CISA listed the following waste industry personnel as critical infrastructure workers:

Transportation and Logistics

  • Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services.

Hazardous Materials

  • Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits;
  • Workers who support hazardous materials response and cleanup; and
  • Workers who maintain digital systems infrastructure supporting hazardous materials management operations.

Water and Wastewater

  • Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including:
    • Operational staff at water authorities;
    • Operational staff at community water systems;
    • Operational staff at wastewater treatment facilities;
    • Workers repairing water and wastewater conveyances and performing required sampling or monitoring;
    • Operational staff for water distribution and testing;
    • Operational staff at wastewater collection facilities;
    • Operational staff and technical support for SCADA Control systems;
    • Chemical suppliers for wastewater and personnel protection; and
    • Workers that maintain digital systems infrastructure supporting water and wastewater operations.

Public Works

  • Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste.

These classifications provide a significant benefit to the waste industry. While state, local, tribal, and territorial governments are ultimately in charge of implementing response activities in their communities, states across the nation are looking to CISA’s guidance to determine which businesses and employees to deem essential. As illustrated below, 16 out of 22 states that have issued “stay at home” orders follow the CISA guidance.

How the Current “Stay at Home” Orders Impact the Waste Industry by State

California

California’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Colorado

Colorado’s Stay at Home Order permits critical businesses to continue operating while the Order is in effect. The Order directs the executive director of the Colorado Department of Public Health and Environment (“CDPHE”) to issue a public health order identifying those critical businesses. CDPHE identified the following as critical businesses: (1) public water and wastewater; (2) trash, compost, and recycling collection, processing and disposal; (3) firms and professionals for who provide services necessary to maintain the safety, sanitation, and critical operation of residences and other Critical Businesses or Critical Government Functions, and other essential services; (4) disinfection; (5) treatment plants; and (6) hazardous material safety.

Connecticut

Connecticut’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also directed the Department of Economic and Community Development (“DECD”) to issue guidance about which additional businesses are essential. The DECD identified “water and wastewater operations, systems, and businesses” and “trash and recycling collection, hauling, and processing” as essential businesses.

Delaware

Delaware’s fourth and fifth modifications to its state of emergency declaration closed all non-essential businesses and ordered Delaware residents to stay at home. The fourth modification permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The state also published an independent list of essential and non-essential businesses. This list states that following businesses are essential: (1) waste collection; (2) waste treatment and disposal; and (3) remediation and other waste management services.

Hawaii

Hawaii’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Idaho

Idaho’s Stay at Home Order permits essential businesses and essential infrastructure to continue operating while the Order is in effect. The Order provides that “solid waste collection and removal” is essential infrastructure. The Order further identifies “service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences” as an essential business. The Order also incorporates by reference the guidance issued by CISA.

Illinois

Illinois’ Stay at Home Order permits essential infrastructure or essential businesses to continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that the following are essential businesses: (1) service providers who provide services that are necessary to maintaining sanitation; and (2) “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal.” The definition of essential businesses also encompasses workers identified in the critical infrastructure sectors, as outlined by CISA.

Indiana

Indiana’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also states that the following are essential businesses: (1) “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal”; and (2) service providers who provide services that are necessary to maintaining sanitation.

Louisiana

Louisiana’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Massachusetts

Massachusetts’ Stay at Home Order permits essential services to continue operating while the Order is in effect. The Order lists the critical infrastructure sectors, as outlined by CISA, as essential services.

Michigan

Michigan’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect.

Minnesota

Minnesota’s Stay at Home Order permits critical sectors to continue operating while the Order is in effect. The Order lists the following as critical sectors: (1) water and wastewater workers listed in the CISA guidance; (2) transportation and logistics workers listed in the CISA guidance; (3) public works workers listed in the CISA guidance; and (4) hazardous materials workers listed in the CISA guidance.

New Hampshire

New Hampshire’s Stay at Home Order permits essential services to continue operating while the Order is in effect. The Order lists the following as essential services: (1) water and wastewater workers listed in the CISA guidance; (2) “truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services”; (3) “support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste”; (4) “solid waste collection and removal”; (5) “municipal transfer stations”; (6) “waste pickup and disposal”; (7) “wastewater treatment”; (8) hazardous materials workers listed in the CISA guidance; and (9) “licensed site clean-up professionals and other workers addressing hazardous spills, waste sites, and remediation.”

New Jersey

New Jersey’s Stay at Home Order does not explicitly identify waste removal as an essential business or service. Clarifying guidance, however, provides that all businesses, aside from non-essential retail businesses and recreational and entertainment businesses, may continue to operate.

New Mexico

New Mexico’s Stay at Home Order permits essential businesses to continue operating while the Order is in effect. The Order lists the following as essential businesses: (1) solid waste collection and removal; (2) trash and recycling collection; (3) processing and disposal; and (4) contractors and suppliers engaged in water and wastewater supply.

New York

New York’s Stay at Home Order permits essential businesses and essential services to continue operating while the Order is in effect. Further guidance issued by the New York Department of Economic Development provides that “essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses” are essential services.

The New York State Department of Environmental Conservation (“NYSDEC”) has advised its Staff and Standby Consultants and Contractors that these services are being interpreted as “any service related to emergency (spill) response and remedial activities at inactive hazardous waste sites, including the operation and maintenance of remedial systems put in place for the protection of public health.”

The guidance also lists “trash and recycling collection, processing and disposal” as an essential service. NYSDEC has explained that this includes “collection, transportation, processing and disposal activities for any solid wastes, regulated medical waste, hazardous wastes, radioactive wastes and other associated waste categories”. NYSDEC also noted “[r]egulations associated with these activities continue to be in effect and any related questions should be directed to appropriate DEC program staff.”

“Public water and wastewater” is also identified as essential infrastructure.

Ohio

Ohio’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order further provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pick up and disposal” are essential businesses.

Oregon

Oregon’s Stay at Home Order lists those businesses which must cease operations, as opposed to defining which businesses are essential and may remain open. Waste-related businesses were not included in the list.

Vermont

Vermont’s Stay at Home Order permits businesses deemed critical to public health and safety to continue operating while the order is in effect. The order lists “trash collection and disposal recycling, and operations and maintenance of drinking water and wastewater/drainage infrastructure” as critical.

Washington

Washington’s Stay at Home Order permits essential critical infrastructure to continue operating while the Order is in effect. In accordance with the Order, the Governor designed the following waste-related businesses as “essential critical infrastructure workers:” (1) the critical infrastructure sectors, as outlined by CISA; and (2) service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects (including support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).

West Virginia

West Virginia’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Wisconsin

Wisconsin’s Stay at Home Order permits the critical infrastructure sectors, as outlined by CISA, to continue operating while the Order is in effect. The Order also specifically provides that essential infrastructure or essential businesses may continue operating while the Order is in effect. The Order defines “wastewater testing laboratories” and “solid waste and recycling collection and removal” as essential infrastructure. The Order also provides that “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as . . . waste pickup and disposal” are essential businesses.

Take-Away

Given the essential public health role of the waste industry, most states have explicitly recognized that the waste industry is an essential business and have adhered to the CISA’s guidance. However, potential challenges and uncertainty may arise in states that have not provided clarity with respect to certain sectors of the industry.

On March 26th, the U.S. Environmental Protection Agency (“EPA” or “Agency”) issued a sweeping guidance memorandum, announcing its intent not to bring enforcement actions for a range of violations of environmental laws caused by the ongoing COVID-19 pandemic.

For an indefinite period of time, “[i]n general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.”

The guidance also announces the Agency’s intent to be lenient even with more serious violations, including those that cause harm or a threat of harm to human health or the environment. If such circumstances arise, “[t]he EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.”

Nevertheless, the policy does not give carte blanche to pollute or violate applicable standards. EPA’s enforcement abstention is specifically conditioned on good-faith efforts by regulated entities to maintain compliance and the ability to adequately document those efforts. So facilities that are not able to meet all of their environmental obligations should keep records of the specific nature and dates of any noncompliance, and be prepared to explain precisely how COVID-19 was the cause of the deviation. Regulated entities should also continue to report any noncompliance, even with routine activities, using existing procedures identified in applicable permits, regulations and statutes. And the guidance reaffirms the requirement to notify EPA or the applicable state implementing authority in the case of a system failure that leads to a release or emissions exceedance.

Once the pandemic ends, EPA will not require facilities to “catch-up” with all monitoring and reporting that is excused under the conditions of the guidance. The Agency does, however, expect facilities to eventually submit all annual and bi-annual reports, and conduct associated monitoring, even if that must be done late.

For environmental obligations that exist pursuant to settlement agreements, the guidance establishes that the Agency considers the pandemic to qualify as a force majeure event. Notice provisions for invoking force majeure clauses in such agreements remain applicable and should be followed. Consent orders, however, are subject to the jurisdiction of a court, and while EPA intends to work with the Department of Justice to help avoid the imposition of certain penalties, its authority in that area is more limited.

Hazardous waste generators that are unable to transfer waste out of their facilities within a Resource Conservation and Recovery Act (“RCRA”) prescribed time period will not be treated as storage and disposal facilities, as long as they continue to properly label and store the waste.

The guidance identifies protection of public water supplies as the Agency’s highest priority and makes no specific exceptions for testing and maintenance of public water systems. Nevertheless, the Agency will consider the pandemic when determining if any enforcement action is appropriate for violations involving public water systems.

Significantly, this is federal guidance only. States and other government entities with environmental enforcement authority may exercise the same or similar enforcement discretion, but are under no obligation to do so. That further underscores the significance of taking all possible action to maintain compliance. EPA’s stated leniency is significant, but the regulated community should not assume that any violations that occur during the COVID-19 pandemic cannot lead to enforcement problems down the road.

The Occupational Safety and Health Administration (“OSHA”) has recently released guidance for solid waste and wastewater management workers and employers handling waste with potential or known COVID-19 contamination. This blog post details what that guidance means for employers.

While OSHA previously recommended treating this waste as regulated medical waste, OSHA now states that “the management of waste that is suspected or known to contain or be contaminated with COVID-19 does not require special precautions beyond those already used to protect workers from the hazards they encounter during their routine job tasks in solid waste and wastewater management.” This change came after recent engagement by both the National Waste & Recycling Association (“NWRA”) and Solid Waste Association of North America (“SWANA”).

Per the updated OSHA guidance, “[w]orkers and employers should manage municipal (e.g., household, business) solid waste with potential or known COVID-19 contamination like any other non-contaminated municipal waste.” OSHA’s recommendation includes maintaining standard safety precautions that have been put in place, such as using puncture-resistant gloves and face and eye protection. These same recommendations also apply to workers handling recyclable material.

For medical waste with potential or known COVID-19 contamination, OSHA’s recommended approach is the same as for any other medical material. OSHA recommends continuing to use typical engineering and administrative controls, safe work practices, and personal protective equipment (“PPE”), such as puncture-resistant gloves and face and eye protection, to prevent worker exposure to the waste streams (or types of wastes), including any contaminants in the materials, they manage.

From a wastewater treatment perspective, OSHA has indicated the virus is considered susceptible to normal disinfectant procedures in wastewater, so current disinfection conditions in wastewater treatment facilities is expected to be sufficient. This includes conditions for practices such as oxidation with hypochlorite (i.e., chlorine bleach) and peracetic acid, as well as inactivation through the use of ultraviolet irradiation. According to OSHA, “[t]here is no evidence to suggest that additional, COVID-19-specific protections are needed for employees involved in wastewater management operations, including those at wastewater treatment facilities.”

 

 

The Department of Justice (DOJ) issued a memorandum, dated March 12, 2020, ending a long-standing practice of allowing companies to reduce civil penalties by performing Supplemental Environmental Projects (SEPs).  DOJ states in the memo that SEPs violate the Miscellaneous Receipts Act (MRA), 31 U.S.C. § 3302, which requires funds received on behalf of the United States to be deposited in the Treasury.  According to the DOJ, civil penalties are considered to be funds received by the government and, therefore, diverting that money to third parties is inconsistent with the MRA, absent authorization by Congress.

SEPs have been the norm in U.S. Environmental Protection Agency (EPA) civil enforcement cases for the past 20-30 years.  Companies have been able to reduce civil penalties by up to 80% by performing in-kind environmentally-beneficial projects.  A frequently used SEP has been retrofitting of diesel engines for school buses and other governmental motor vehicles.  This SEP has been specifically authorized by Congress and, according to the memo, is one SEP that will continue, but only in mobile-source cases.

The memo leaves open the option for Congress to authorize further exceptions.  In the meantime, attorneys negotiating SEPs on behalf of their clients will no longer have the benefit of reducing the total penalty sum by the cost of implementing an environmentally-friendly project in a community.  It’s a loss for businesses and the communities in which they operate.  Our experience is that money spent on SEPs, such as replacing lead-glass windows or changing out PCB-light ballasts in schools (two SEPs our clients have implemented recently), often put penalty dollars to better use than simply depositing the money in the U.S. Treasury.

Last week, a federal judge denied a request from the U.S. Environmental Protection Agency (“EPA”) seeking to shift its timeline for implementing a 2016 rule targeting landfill emissions. As a result, EPA is required to finalize its federal implementation plan for landfill methane emissions by January 14, 2020.

This ruling marks the latest turn in a contentious battle for the industry. In 2016, U.S. EPA introduced its Emissions Guidelines (“EG”) rule alongside its New Source Performance Standards Rule, as part of a focus on reducing methane emissions. Under the original rules, state agencies were required to submit plans by May 2017 that would outline their proposal on reducing methane and other emissions from landfills. States that did not meet this deadline, or EPA’s standards, would have been subject to the federal plans.

Industry participants challenged these regulations, however, and were granted a 90-day stay in May 2017. Next steps remained unclear until October 2017, when the EPA confirmed that it would not sanction states that did not file EG plans. Arizona, California, Delaware, New Mexico, and West Virginia have since all submitted EG compliance plans, while other states are trying to determine whether to submit their own.

In 2018, California, Pennsylvania, Illinois, Maryland, New Mexico, Oregon, Rhode Island, and Vermont challenged EPA, arguing that EPA must promulgate a federal plan. That challenge led to the May 6, 2019 ruling declaring EPA in violation of “long-overdue non-discretionary duties” under the Clean Air Act and directing the agency to issue, “no later than November 6, 2019,” a federal plan to implement its 2016 Landfill Emissions Guidelines.

EPA requested to delay promulgation of its final emissions plan, but its request was ultimately denied. The Court did, however, grant the agency a 60-day stay. Plaintiffs responded on December 5, 2019, arguing that “the equities here tilt sharply in favor of rejecting EPA’s bid to further delay implementation of regulations.” In a subsequent request, EPA again asserted the need for a delay of the regulations.

EPA’s subsequent request was denied, requiring the agency to finalize its federal implementation plan by January 14, 2020. EPA immediately responded to this denial by asking the Ninth Circuit Court of Appeals to postpone the deadline. Among its arguments, EPA asserted that “the number of landfills expected to be impacted by the landfill emission guidelines is small.” EPA requested relief by January 13, 2020.

For companies that operate landfills in multiple states around the country, this back-and-forth has been counterproductive and confusing. The regulatory disputes have left many operators with mixed messages over landfill regulations and have unfortunately required operators to wait for a path forward. Litigation over the issue is likely to continue nonetheless, to the dismay of the industry.

The regulation of PFAS substances has become a matter of contention between U.S. EPA, states and local governments, environmental groups, and industry participants. EPA is under pressure by health experts, environmental groups, and affected communities to set a Maximum Containment Level (“MCL”) for PFAS, but has yet to do so. States, however, are beginning to push for state specific regulations that would lower the amount of PFAS substances allowed in drinking water and groundwater. Industry participants have strongly opposed these new regulations, arguing that states are legislating before thoroughly evaluating the costs, benefits, and science that can back up setting stricter standards.

On October 1, New Hampshire enacted stringent PFAS regulations that dropped the allowable limit of PFAS substances to 12 parts per trillion (“ppt”) for PFOA, 15 ppt for PFOS, and 18 ppt for PFHxS in drinking water and groundwater. The regulations were also the first in the United States to require routine landfill testing. 3M, a manufacturer of PFAS compounds, filed suit in New Hampshire Superior Court and sought an injunction to halt the enforcement of these lower limits. A local farmer, the town of Plymouth, and a sludge company joined 3M in the suit. Plaintiffs argued that the cost to comply with the new rules increased significantly compared to the costs attributed to the original proposed rule, the Department of Environmental Services (“DES”) failed to provide an estimate of the benefits associated with the new rule, and the state failed to allow adequate public comment before approving the standards.

New Hampshire Superior Court Judge Richard B. McNamara granted the requested injunction last week, agreeing with Plaintiffs that DES did not conduct an adequate cost-benefit analysis of the rule, as required under New Hampshire law. This injunction will bar the state from enforcing the stricter standards and will prohibit testing for PFAS in landfills, wastewater treatment plants, and water systems. Judge McNamara ordered that the injunction not take effect until December 31, however, so that either party can appeal or seek review in the New Hampshire Supreme Court.

This ruling highlights the resistance states are facing for pushing forward PFAS regulations without properly evaluating the data and the costs and benefits associated with stricter standards. Nevertheless, pressure to regulate PFAS is unlikely to decrease.