EPA today released updated interim drinking water health advisories for PFOA and PFOS.  The health advisory level was previously 70 ppt (parts per trillion) for the total of PFOA and PFOS.  The updated interim health advisory levels are now 0.004 ppt for PFOA and 0.020 ppt for PFOS, three orders of magnitude lower.  EPA’s health advisories are not enforceable or regulatory, but are painful in civil litigation because they have the look of a standard.  These interim health advisories will be in place until EPA passes its PFAS National Primary Drinking Water regulation.  When EPA eventually undergoes a rulemaking process, we can expect a torrent of negative comments focused on achievability and cost. 

EPA also set final health advisory levels for the first time for GenX Chemicals at 10 ppt and for PFBS at 2,000 ppt. In chemical and product manufacturing, these chemicals are considered replacements for PFOA and PFOS.

In a case that could open the door to more citizen suits to enforce mobile source provisions of the Clean Air Act—a category of enforcement actions that has so far failed to gain much traction—the 10th Circuit Court of Appeals recently issued an opinion broadly upholding a non-profit organization’s standing. Utah Physicians for a Healthy Environment v. Diesel Power Gear, LLC  involved claims that the defendants had violated Title II of the Clean Air Act in a number of ways, including by removing emission-control devices from diesel trucks, selling and installing after-market defeat devices, and operating vehicles without proper emission-controls devices. The plaintiff, the non-profit Utah Physicians for a Healthy Environment (“UPHE”), claimed the emission of pollutants associated with the violations “contribute[d] to the adverse [health] effects” of its members, and forced them to avoid certain outdoor recreational activities. At the trial court, UPHE was awarded partial summary judgment, and other claims were adjudicated in its favor during a bench trial. The trial court found that statutory penalties of up to $117,290,620 were allowed, but awarded no more than $333,700 against any single defendant. The trial court also issued an injunction prohibiting the defendants from engaging in any of the activities prohibited by the Act. 

The primary issue on appeal was the UPHE’s standing to bring the claims, and particularly whether its members established causation between their injuries and the defendants’ conduct. The defendants argued that, under the Clean Air Act, UPHE was required to show that the wrongful emissions made a “meaningful contribution” to its members’ injuries. And because any pollution that resulted from the defendants’ violations was only a “negligible fraction of the total pollution that comes from a myriad of sources” in the area, there was no legal causation. 

The 10th Circuit disagreed. First, the court rejected the “meaningful contribution” causation standard. Instead, it found that UPHE had to show only that its members’ injuries were “fairly-traceable” to the defendants’ violations. The “meaningful contribution” language was used by the U.S. Supreme Court in holding, in the landmark decision Massachusetts v. E.P.A., that EPA could regulate greenhouse gas emissions under the Clean Air Act. According to the UPHE court, however, the relevance of the meaningful contribution requirement (in that case, of U.S. auto sector carbon emissions) was to address the less-direct causal chain between atmospheric greenhouse gases and sea level rise in Massachusetts. It did not apply to UPHE’s claims that tailpipe emissions harmed its members’ health.  

Furthermore, the court stressed the importance of citizen suits to holding relatively small polluters accountable under the country’s environmental laws. The primary purpose of citizen suit provisions is to expand the potential claimants—and thus enforcement resources—so that cases might be brought against violators that the government would not otherwise have the resources to hold accountable. To limit standing to cases involving only the largest sources of emissions would effectively bar citizen suits in most of the relatively small cases where Congress intended them to play the largest role. 

The court did reverse the lower court and find that UPHE lacked standing with respect to one portion of its claim: violations that depended on vehicles that were never driven in the airshed where UPHE members live. Any such violations would only have resulted in emission that were too geographically remote to sufficiently affect UPHE’s members. This line drawing, although meaningful, only reinforces just how minimal the environmental impact of a violation must be in order to constitute the legal cause of harm for standing purposes. The result, as the court found, is that “[i]f the vehicle was driven, however little, in the Salt Lake City area, UPHE has established that its members’ injuries from excessive pollution can be fairly traced to the CAA violation.” 

The UPHE decision seems to invite Clean Air Act mobile source citizen suits, particularly by environmental organizations. Although climate change cases may be an exception, the reasoning of the case suggest that a group has standing to bring a claim for nearly any violation that the results in some increased emissions in an area of the country where the organization has at least one member. That likely covers most of the country, if the right plaintiff organization is interested in pursuing the claim.

As a result, relatively small-scale mobile source standard violators that have been getting by largely under the agency enforcement radar could see a bumpier road ahead. 

Earlier this week, the U.S. EPA published the fifth Unregulated Contaminant Monitoring Rule (UCMR 5). Pursuant to the rule, all public water systems serving more than 10,000 people, as well as  public water systems serving between 3,300 and 10,000 people (but only if sufficient funding and lab capacity is available), will be required to conduct a 12-month long sampling program for 29 specified PFAS chemicals.  The rule will also require the same testing from 800 randomly selected systems that serve less than 3,300 people.

Nothing about the rule comes as a surprise.  Congress specifically instructed the agency to include the PFAS chemicals in this iteration of the UCMR in the National Defense Authorization Act for Fiscal Year 2020.

The rule is, however, indicative of the focus the federal government is putting on all things PFAS. Although monitoring will only be required for 29 of the thousands of PFAS chemicals, this limitation reflects technical considerations and not modesty of the government’s intention to act aggressively when it comes to PFAS in drinking water. The 29 included PFAS are all of those which can be detected with the two EPA-validated testing methods for PFAS, Methods 533 and 537.1.  It would not be surprising to see additional PFAS monitoring requirements imposed of public water systems, if and when methods for reliably detecting those chemicals gain acceptance with EPA.

Complete results from the monitoring program will not be known for some time. Sampling does not begin until the beginning of 2023 at the earliest, and it may last through the end of 2025 at some systems. EPA is already in the midst of setting drinking water standards for some PFAS. One question that this rule raises is how important the agency believes the results are to its ability to move forward with similar rulemakings for other PFAS. This is an issue we will be watching closely at Environmental Law Next.


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 10/1/21

Sources: State Federal PFAS Drinking Water Standards – Updated 10/1/21

The U.S. EPA recently released the 15th installment of its Preliminary Effluent Guidelines Program Plan[1]. In addition to announcing the initiation of new rulemakings for certain categories of industrial dischargers, the report provides a window into where the agency is focusing its attention for potential future clean water act regulations. This year, landfills were among the categories of sources that EPA has been studying, and will continue to study as it continues to look for ways of reducing per- and polyfluoroalkyl substances (PFAS) in the environment.

Previously received public comments about landfill leachate as a source of PFAS in surface water, groundwater, and publicly owned treatment works (POTWs) was identified as the impetus for this review. The agency’s study of landfills was also coordinated with a study of PFAS discharges from a broader range of industrial sources.

Primary Clean Water Act regulations for landfill leachate date back to 2000. At that time, although pretreatment standards for indirect discharges were initially proposed by the EPA Office of Water, the agency ultimately decided against enacting them because it concluded that “(1) raw leachate data were below published biological inhibition levels, and (2) other information indicated a lack of ‘pass-through’ of toxics (including lack of showing of adverse impact on POTW sludge quality).” 64 FR 6807[2]. Due to the rise of concern over PFAS, however, the agency may no longer feel the same way.

EPA’s recent review was based on previously published peer-reviewed literature and water sampling conducted by various states. The review did not reach any definitive conclusions about either the scope of the issue presented by PFAS in landfill wastewaters or how to address it. Rather, the agency concluded that “further research is needed to address limited data availability” and that it plans to proceed with a more “detailed study.” In particular, EPA is interested in gathering more information about the amount of wastewater indirectly discharged from landfills to POTWs, that wastewater’s impact on POTW influent and effluent PFAS concentrations, and whether there are landfills currently implementing PFAS treatment for leachate.

Given these areas of further inquiry and EPA’s current focus on all things PFAS, it appears that the agency is at least considering a leachate pretreatment requirement. Although the results of additional studies will likely further shape EPA’s thinking in this area, landfills may want to start contemplating how they would be affected by and deal with a PFAS-focused leachate pretreatment requirement.

[1] https://www.epa.gov/system/files/documents/2021-09/prepublication-preliminary-elg-plan-15.pdf

[2] https://www.govinfo.gov/content/pkg/FR-1999-02-11/pdf/99-3426.pdf


The Vermont Department of Environmental Conservation (VDEC) is currently in the process of reviewing and reauthorizing its Hazardous Waste Management Regulations. Mixed among the updates is a proposed provision that should be of great concern to generators of used oil wastewater. Section 7-805 of VDEC’s hazardous waste regulations delineates the requirements for wastewater to be considered used oil, which currently is not subject to the Department’s regulations for disposal of hazardous waste. However, the proposed regulations add §7-805(g) to its section on used oil determination. This section would require that manufacturers review the composition of their wastewater. If the wastewater contains less than 50% used oil, and the non-oil wastewater could otherwise be classified as a hazardous waste, then the manufacturer would be required either remove the hazardous materials from the used oil, or else treat the entirety of the wastewater under VDEC’s regulations for treatment of hazardous waste. As most wastewater currently classified as used oil contains greater than 50% water and contaminants, the adoption of this provision would have a significant impact on oily wastewater treatment.

The classification of “oily wastewater” as hazardous waste would have a significant impact on manufacturers within Vermont. First, the process of determining whether the water consisted of used oil or hazardous waste would be fraught. The change in classification would require generators of oily wastewater to test their wastewater to determine both the percentage of used oil and whether the remainder of the wastewater has hazardous waste characteristics. Accurate testing would require additional personnel training and equipment, and even then may not be entirely accurate, especially when the percentage of used oil approaches 50%. Should the wastewater be determined to be used oil by the generator, but hazardous waste by the treatment facility, then the waste will likely need to be returned to the generator at their expense. Furthermore, generators of oily wastewater would suddenly be considered producers of hazardous waste, and subject to a number of additional requirements under VDEC regulations.

Second, §7-805 would make the disposal of oily wastewater significantly more expensive. Currently, oily wastewater is treated in wastewater treatment facilities. However, these facilities are largely incapable of properly treating hazardous wastes, and are generally subject to strict regulation preventing them from doing so. Alternative means of treatment are significantly more expensive. Resource Conservation and Recovery Act (RCRA) and Clean Air Act regulations contain strict requirements for the evaporation of the water, and disposal in a landfill would be prohibitively expensive. Incineration could be a viable option, but there are few incineration sites near Vermont, and the cost to transport the wastewater would be significant. As a result, the enactment of this provision promises to increase the costs of oily wastewater treatment considerably.

Section 7-805(g) would be the first provision of its kind in the United States. Nationally, RCRA established the regulatory framework for generation, management, treatment, and disposal of hazardous waste. The U.S. Environmental Protection Agency’s (EPA) regulations promulgated under RCRA have explicitly set forth a separate process for the treatment of used oil in 40 CFR Part 279. Specifically, in 40 CFR §279.10, EPA exempted many solutions that contained used oil from the hazardous waste classification, even if they exhibited characteristics or contained amounts of hazardous waste, instead subjecting them to separate but less restrictive treatment requirements. Many states have adopted portions or all of 40 CFR Part 279, and while Vermont has not, the VDEC’s Hazardous Waste Management Regulations have contained similar classifications for used oil. Vermont’s deviation from its used oil regulations could have a significant impact on other states, or even EPA, should they decide to revisit their own regulations.

Developers, ranchers, farmers and others who fill or alter bodies of water have seen a never-ending carousel of regulatory changes to the federal rules that apply to such activities.  Earlier this week, an Arizona federal court made one more change while new rules are being written.

On August 30, 2021, the U.S. District Court for the District of Arizona vacated a 2020 rulemaking that had pared back protections to certain bodies of water (see attached August 30, 2021 Opinion).  The 2020 rulemaking replaced a 2015 rule defining “waters of the United States” more broadly under the Clean Water Act.  The court vacated the 2020 rule finding that it could result in serious environmental harm.  The court noted “[t]he seriousness of the Agencies’ errors in enacting the [2020 rule], the likelihood that the Agencies will alter the [2020 rule] definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the [2020 rule] remains in place upon remand, all weigh in favor of remand with vacatur.” Currently, the U.S. EPA and the Army Corps of Engineers are working on new rules but had, in the meantime, left the 2020 rulemaking in place. The court left open for further briefing and argument whether the 2019 regulatory action repealing the 2015 rule is valid.

This saga began back in 1972 when Congress enacted the Clean Water Act regulating discharges to “waters of the United States,” without further definition of such waters.  Federal agencies later defined “waters of the United States” by regulation.  That regulation was challenged by the regulated community and a divided U.S. Supreme Court weighed in in 2006.  Rapanos v. United States, 547 U.S. 715 (2006).  Confusingly, the Court’s plurality opinion set forth competing standards for what constituted “waters of the United States.”  In 2015, the U.S. EPA and the Army Corps of Engineers promulgated regulations defining what constituted “waters of the United States,” which included a broader swath of water bodies, such as ephemeral streams, than before.  In 2019, these same agencies (under a different administration) repealed the 2015 rulemaking and instituted the prior regulatory definition of “waters of the United States.”  Then, in 2020, the agencies promulgated a new rule more strictly construing the breadth of federal reach by excluding certain water bodies, like ephemeral streams, from regulation under the CWA.

With the court’s action, at least for now, U.S. EPA and the Army Corps of Engineers will revert back to the definition of “waters of the United States” in existence prior to 2015.  Stay tuned!

EPA recently issued an Enforcement Alert to owners and operators of metal recycling facilities about high levels of VOC emissions that have been identified at a number of large shredders.  The issue of VOC emissions from metal shredders has not previously been well known or understood.  EPA is now publicly acknowledging the issue and, finally, alerting facilities and state environmental agencies.

These scrap metal recycling facilities have routinely been permitted and operated without any VOC emission limitations or controls.  Emissions testing had not previously been done because the vast majority of the approximate 250-300 shredders throughout the U.S. are not equipped with emissions capture systems that could capture and route shredder exhaust gases through a stack or vent where VOC emissions can be measured in accordance with USEPA-approved test methods.  EPA’s strategy, to date, has been to require site-specific testing and then impose substantial fines, when the testing shows higher than expected VOC emissions.

In this alert, EPA acknowledges that there is a great discrepancy with test results to date and there is no consensus on an appropriate or reliable emission factor.  Given that metal shredding operations typically use the same hammermill technology and process the same general scrap metal stream, the VOC emission factors should be reasonably similar.  As EPA states, the disparities in VOC emission factors is predominantly due to the capture efficiency during emissions testing.  For far too long, EPA has been permitting and regulating facilities using grossly disparate emission factors from faulty testing, resulting in facilities significantly underestimating VOC emissions and continuing to operate without the necessary VOC control equipment.

The EPA Alert discusses the types of control equipment that may be necessary and effective to avoid major source threshold and/or comply with RACT regulations.  These controls require a significant investment by the metal recycling facility and include an enclosure, capture hoods and fans, cyclone, filter, regenerative thermal oxidizer (RTO) and scrubber.  These facilities are finding that this control equipment is not off-the-shelf, and must be specially designed, installed and operated.

The EPA Alert was a good first step; however, EPA did not resolve the issue of variability in emissions test data.  The logical next step would be for EPA to develop a standardized test protocol, with appropriate capture requirements, to be used throughout the country.  EPA should also approve emission factors that can be used at similarly-situated facilities, in lieu of testing.  The obvious benefits would be to eliminate the use of faulty emission factors and level the playing field in the industry.

Metal recycling facilities should take heed of EPA’s recommendations in the alert or risk significant civil penalties, those being:

  • Utilize best pollution prevention practices so that fluids and other combustible materials are removed prior to shredding.
  • Estimate hourly and annual VOC emissions using available test data from similar facilities.
  • If VOC emissions are near or over RACT or NSR/PSD thresholds, consult with EPA or the state environmental agency to discuss options, such as performing facility-specific testing, installation of controls, operational permit limits and the like.

The use of the EPA Audit Policy or a state self-disclosure law should be evaluated prior to initiating this type of review.  Prompt reporting of a violation under the terms of the EPA Audit Policy or a comparable state law may result in some amount of penalty mitigation.

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.