The Illinois General Assembly has passed the Coal Ash Pollution Prevention Act.  Once it is signed into law by Governor Pritzker, Illinois will become the latest state to address a legacy of coal power generation with targeted legislation.  The impacts of the law – financial, environmental and operational – could be immense.  The most significant details, however, are being left to an upcoming administrative rulemaking process.  The Illinois EPA and the Illinois Pollution Control Board are now positioned to shape the State’s coal ash policy.  Their decisions will determine the fate of the State’s ash impoundments and the lengths power plant owners will have to go to fully close their facilities after retirement — and will have billions of dollars of implications.

What’s Missing?

The most glaring absence from the Act is clear direction on how each coal plant will have to close and secure its active impoundments.  The law requires submission of a closure alternatives analysis, and that analysis must assess the complete removal of ash from the impoundment, in addition to “all closure methods being considered.” The Illinois EPA, however, will ultimately have discretion whether to order complete removal of all ash or something less, such as dewatering and capping all remaining ash in place.

The significance of the closure method decision – economically as well as environmentally – is hard to overstate.  Illinois is putting itself on a path that could mirror the ongoing process in North Carolina, where the legislature first passed the Coal Ash Management Act (“CAMA”) in 2014.  Like the Coal Ash Pollution Prevention Act, CAMA delegated the closure method decision for some sites to environmental regulators.  North Carolina DEQ recently ordered complete excavation at all sites over which it had that jurisdiction.  Duke Energy, which owns the plants, is claiming that excavating all of the coal ash from certain sites will be more than 500% more expensive than capping the ash in place, and that as a result the total costs at some individual plants will exceed a billion dollars.

What Comes Next?

Delegating such substantial authority to Illinois EPA also sets up future court battles that could drag on for years.  Duke has already begun the process of challenging North Carolina DEQ’s basin excavation orders.

The Act also puts the Illinois EPA in the position to decide how much coal plant owners will pay in the short term.  The law mandates that plant owners post a performance bond or equivalent security sufficient to ensure the closure of all impoundments, to cover post closure care, and to fund any necessary environmental remediation.  These financial instruments will not come cheap, but just how expensive they will be will depend on how much financial assurance the Illinois EPA requires.  Regardless, those costs are likely to be far greater than the relatively small ash impoundment fees imposed by the Act ($75,000 initially for each operating impoundment, and another $25,000 per year).

The upcoming Illinois Pollution Control Board coal ash rulemaking therefore will go a long way to determining Illinois’ coal ash policy.  There is a possibility of additional legislation to modify or clarify parts of the Act, but that is not certain, and any additional legislation is likely to focus on financial assurance issues.  As it stands now, the Act instructs the Illinois EPA to propose rules within eight months of its effective date, and the Board to adopt final rules within the year after that.  The regulations the Illinois EPA proposes and the Board adopts not only will indicate how aggressive the Agency is likely to be in the future, but also will dictate how difficult it will be to challenge its decisions in court.  We will be keeping an eye on that process at Environmental Law Next and posting updates on significant developments.  Feel free to contact us if you have any questions or comments about our post.


The U.S. Supreme Court on Monday stated that it would review a case filed by property owners in Montana state court seeking restoration damages that were beyond the clean-up activities required by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In the case, Atlantic Richfield Co. v. Christian, Atlantic Richfield (Arco) is seeking to overturn a decision by the Montana Supreme Court, which they claim is pre-empted by federal law and conflicts with the decisions of other courts on CERCLA interpretation.  The federal government also weighed in at the request of the U.S. Supreme Court.  The federal government agreed that the Montana Supreme Court “erred in its analysis,” but argued that the petition should be denied as premature.  Nonetheless, the U.S. Supreme Court granted the petition, which Arco has stated involves “one of the most consequential decisions interpreting CERCLA in years.”

The questions presented in the petition are:  (1) whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the EPA ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of CERCLA; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

We will continue to follow this case and provide updates as they become available.

The U.S. Environmental Protection Agency (EPA) released a decision last week stating that revisions to the federal regulations for the management of wastes from the exploration, development, and production of crude oil, natural gas, and geothermal energy (i.e. oil and gas wastes from hydraulic fracturing and directional drilling) are not necessary at this time.  EPA was required to assess the current regulations under a Consent Decree entered into with EPA and seven environmental advocacy groups.  The environmental groups had filed a federal lawsuit against EPA in 2016, in which they alleged that EPA was obligated to review and revise, if necessary, RCRA Subtitle D regulations and state plan requirements for oil and gas wastes.

In making its decision, EPA reviewed regulations of states that collectively account for 95% of the oil and gas production in the United States.  EPA concluded that, while the oil and gas industry “has undergone a significant transformation in recent years” from the increased use of hydraulic fracturing and directional drilling, the states had also updated their regulatory programs in response to these new technological advancements.  EPA also reviewed literature on the potential for adverse effects from the management of the oil and gas wastes, as well as data on recent environmental releases of these wastes, and concluded that existing state programs were sufficient to manage the oil and gas wastes in a manner that is protective of human health and the environment.

The environmental community is, unsurprisingly, not pleased with EPA’s decision.  The Environmental Integrity Project, one of the environmental advocacy groups that filed the lawsuit in 2016, issued a statement that EPA’s determination has “left oil and gas wastes subject only to generic and outdated standards.”  With the regulatory updates being made at the state level, however, EPA is confident that these wastes can be “appropriately and more readily addressed” within the scope of the existing state programs, which it stated are “robust.”

The U.S. Environmental Protection Agency (“EPA”) released a much-anticipated draft document to address groundwater contaminated with PFOA and/or PFOS.

According to EPA, the guidance is based on EPA’s current understanding of PFAS toxicity and is intended to provide clear and consistent guidance for cleanup programs. Specifically, the guidance provides interim recommendations for addressing groundwater contaminated with PFOA and/or PFOS at sites being evaluated and addressed under federal cleanup programs, including the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) and corrective action under the Resource Conservation and Recovery Act (“RCRA”). The information and recommendations may also be used by state, tribal, or other regulatory authorities (e.g., federal facility cleanup programs, approved state RCRA corrective action programs).

The guidance recommends the following:

  • ​Screening sites using a screening level set to a Hazard Quotient of 0.1 for PFOA or PFOS individually, which is currently 40 ng/L or parts per trillion (ppt);
  • ​Using the PFOA and PFOS HAs of 70 ppt as the PRG for groundwater that is a current or potential source of drinking water, where no state or tribal MCL or other applicable or relevant and appropriate requirements (“ARARs”) exist; and
  • ​In situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFOS over 70 ppt.

This guidance does not declare PFAS chemicals to be hazardous substances under Superfund and it does not explicitly require clean up at contaminated industrial sites, landfills, or military facilities. Rather, it simply recommends cleanup when chemicals are found in groundwater being used for drinking at concentrations of 70 parts per trillion or higher.

While some have commended EPA for take the first step in developing PFAS guidelines, many have criticized the guidance for failing to adequately protect communities from PFAS contamination. Accordingly, we expect to see many advocacy groups urging EPA to adopt more stringent standards and an “emergency action level,” at which the EPA would commit to step in and remove the presence of the chemicals to protect public health.

The public will have an opportunity to submit their comments on the guidance for 45 days from April 25, 2019 to June 10, 2019.  For more information, visit To submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-0229, visit


On April 15, 2019, U.S. Environmental Protection Agency (“EPA”) issued a new interpretation of the Clean Water Act (“CWA”), stating that the CWA does not require permits for groundwater pollution. The CWA regulates pollution to surface water and requires permits for point-source discharges. However, the question as to whether a discharge of pollutants into groundwater can potentially trigger the CWA’s permitting requirements has been the subject of conflicting federal appellate court decisions.

The Ninth Circuit has held that a county violated the CWA by allowing pollutants from four sewage wastewater injection wells to seep into the Pacific Ocean through groundwater without issuing a NPDES permit. In that case, the EPA filed a friend of the court brief, agreeing that the county was acting illegally. The Fourth Circuit has sided with the Ninth Circuit on this issue, while the Sixth Circuit has explicitly limited the CWA’s application to direct discharges to navigable waters from point sources. In February 2019, the Supreme Court granted certiorari in the Ninth Circuit case to resolve the circuit split on this issue.

EPA’s new interpretation is significant in that it comes just a few months after the Supreme Court granted the Petition for writ of certiorari and that it reverses the position EPA took in the Ninth Circuit case. The EPA is now of the position that “releases of pollutants to groundwater are categorically excluded from the act’s permitting requirements,” regardless of whether the groundwater is hydrologically connected to “navigable water” that is within the CWA’s justification. While EPA clarified that this interpretation would not be enforced in the Ninth and Fourth Circuits (pending the Supreme Court’s ruling on the matter), the new policy will be enforced in the rest of the country immediately.

This change will ultimately make it harder to enforce the CWA in cases that involve conveyance via groundwater. Likewise, for municipal and industrial facilities that discharge to groundwater, it provides some clarity over which federal laws are supposed to cover which types of water.

On Thursday, the Trump Administration announced that it will issue a draft regulation by the end of the year placing a limit on two chemicals frequently found in drinking water. The steps to eventually regulate two types of per- and polyfluoroalkyl substances (“PFAS”) known as PFOA and PFOS were announced by U.S. EPA head Andrew Wheeler. Other steps outlined Thursday include the initiation of a regulatory process to list PFOS and PFOA as hazardous substances under Superfund and a promise that EPA will “very soon” release interim groundwater clean-up recommendations for sites contaminated with PFAS. EPA is also looking into regulating other chemicals in the PFAS family.

PFAS are man-made chemicals that are resistant to water, grease, and stains and have thousands of consumer and industrial uses. They can be found in carpets, camping gear, fast-food wrappers, fabrics for furniture, water-repellent fabrics, cleaners, cookware, and more. Industry uses include O-rings and gaskets that prevent mechanical breakdowns, metal plating, and fire-fighting foams. Currently, many PFAS concentrated products end up in landfills which can seep into the ground in unlined landfills or pool at the bottom of lined landfills and often end up in wastewater treatment plants that are not equipped to remove PFAS.

EPA currently has a health advisory level for PFAS compounds in drinking water of 70 parts per trillion. However, EPA plans to consider setting federal maximum contaminant levels as part of its draft regulation, which would require increased monitoring and reporting efforts, and would ultimately give the agency more authority to pursue polluters. Likewise, the designation of PFOS and PFOA as hazardous substances under Superfund will give communities and states the power to recover costs of cleaning up the chemicals from polluters. In its 72-page Action Plan, EPA highlighted its intention to improve PFAS cleanup strategies, prohibit environmental release, improve monitoring, and increase enforcement of those in violation of federal PFAS standards.

According to POLITICO, even Republicans in Congress are concerned that the EPA will not move forward with a rulemaking to regulate PFOS and PFOA.  It appears acting EPA Administrator Andrew Wheeler has already approved a decision, contained in the agency’s forthcoming chemical management plan, not to add the chemicals to the group of contaminants regulated under the Safe Drinking Water Act.  The decision follows controversy over the Trump administration’s suppression of a report from the Department of Health and Human Services which suggests that Perfluoroalkyl compounds, which include PFOS and PFOA, are more prevalent, and pose a greater risk to Americans’ health, than previously known.

The question now is whether Congress will take any action.  It has rare leverage at the moment, as Mr. Wheeler’s nomination to head the EPA as its permanent Administrator is in the hands of the Senate Environment and Public Works Committee.  A vote is scheduled for February 5th and, on a committee where the Republicans have only a one seat advantage, a defection by any one of them could potentially kill Mr. Wheeler’s prospects.  Senator Shelley Moore Capito of West Virginia has spoken out on the need to address Perfluoroalkyl contamination and may be the deciding vote.

Given the willingness of numerous elected Republicans to come out in favor of new federal regulations for PFOS and PFOA, some additional EPA action on the subject seems inevitable sooner or later.  And although EPA is likely to add PFOS and FPOA to the list of CERCLA hazardous substances, that will probably be viewed as inadequate by many, given how prevalent the chemicals are now understood to be.

But even if eventual federal regulation of PFOS and PFOA in drinking water were a certainty, further delay will likely have several significant effects.  Deferred  remediation expenditures is one obvious one.  Less straight forward, however, is the impact from parallel state action.  Some states already regulate the chemicals in groundwater and more will likely follow, particularly in the face of federal inaction.  If more of those regulatory regimes have time to be put into place and tested on a wide scale, they could indirectly shape federal regulation.  EPA may approach its regulatory role differently in a context where a contaminant is almost completely unregulated, compared to one where many states are effectively addressing a problem.  Furthermore, the Clean Drinking Water Act regulation must consider economic costs and benefits, and if states push ahead in this area they may spur the generation of substantial data on which the Agency can make that assessment.

We expect a lot more news and developments in this area and will be tracking it closely at Environmental Law Next.

The longest federal government shutdown in U.S. history continues to affect around 800,000 federal workers and major agencies, including the United States Environmental Protection Agency (“EPA”). Despite the shutdown, however, many EPA employees are being called into work without pay.

On January 14, 2019, EPA updated its contingency plan for shut down to increase the total number of “excepted personnel” to 891 or 6.37% of its total workforce. EPA’s contingency plan lists 486 HQ program employees as “excepted personnel” and 405 regional employees as “excepted personnel.” 22 of the excepted regional employees include those located in Chicago at Region 5.

“Excepted personnel” are those that are necessary to perform excepted activities and are excluded from furlough during the shutdown, but only for the hours/days it takes them to perform their excepted activities. “Excepted activities” include activities such as providing for homeland and national security or personal services necessary to respond to emergencies involving the safety of human life or the protection of property, where the threat to human life or property is imminent. Such personal services include legal counseling, litigation, and law enforcement activities designed to protect human life and property from imminent threat. EPA has also stated that work in preparing for a congressional hearing is “excepted,” and, as such, EPA “excepted a limited number of employees” to help Acting EPA Administrator Andrew Wheeler prepare for his confirmation hearing, which the Senate held Wednesday.

As the partial government shutdown continues, it is expected that EPA functions and personnel responsibilities will continue to be limited to activities that are necessary to protect public health and safety. According to EPA’s contingency plan, once EPA receives notification that an appropriation has been approved or is imminent, it will contact EPA regional offices to begin resuming orderly operations.

The Chicago-Naperville, IL-IN-WI ozone nonattainment area failed to attain the 2008 ozone NAAQS by the attainment date of July 20, 2018.   The area, which is currently classified as “Moderate” for the 2008 ozone NAAQS, will automatically be bumped-up to a “Serious” classification upon the effective date of the final reclassification notice.  The Chicago area joins six (6) other Moderate areas that likewise failed to attain the standard, including Dallas-Fort Worth, TX; Greater Connecticut, CT; Houston-Galveston-Brazoria, TX; Nevada County (Western part), CA; New York-North New Jersey-Long Island, CT-NY-NJ; and San Diego County, CA.

The U.S. Environmental Protection Agency (USEPA) published a proposed rule of the reclassification on November 14, 2018.  The reclassification is based on ozone monitoring data for the years 2015-2017.  The bump-up to a Serious classification will give Illinois, Wisconsin and Indiana until July 20, 2021 to attain the standard.  These states will be required to submit to USEPA the SIP revisions for these areas that meet the requirements applicable to “Serious” areas under Section 182(c) of the Clean Air Act.  USEPA is proposing in the rule to allow the states up to 12 months after the effective date of the final reclassification notice to submit SIP revisions for non-RACT requirements and until August 3, 2020 to submit RACT SIP revisions.

The effect of failing to attain the standard is significant for owners or operators of sources in the area that emit volatile organic compounds (VOCs) or nitrogen oxides (NOx).  The main impacts of the reclassification include:  (a) the Title V major source threshold will be going from 100 tpy to 50 tpy; (b) the new source review major modification threshold will be going from 40 tpy to 25 tpy aggregated over 5 years; (c) the emissions offset requirements will be going from 1.15 to 1, to 1.2 to 1; and (d) new RACT requirements may be implemented to control sources emitting between 50 to 100 tpy.

With the lowering of the Title V major source threshold, sources should begin to seek emission reductions and permit revisions to stay below the new 50 tpy threshold.  Sources that cannot stay below the major source threshold will need to apply for and obtain a Title V permit.  Sources should also be considering the new source review and major source threshold changes when planning upcoming projects at your facility.

USEPA is accepting comments on the proposed rule by December 14, 2018.  Assuming no public hearing is held, the automatic bump-up could happen as early as February 2019.  We will continue to keep you apprised of developments as they occur.

With EPA’s e-Manifest set to officially launch on June 30, 2018, companies need to begin preparing to register for the system.  Here is the latest information from EPA about how the registration will work.

All receiving facilities must have an EPA ID number by June 30, 2018, regardless of whether they will be using paper or e-Manifests.  The receiving facilities are the parties that will be responsible for payment of the user fees and the EPA ID number will be the means for tracking billing.  Generators will also need an EPA ID number if they want to sign electronic manifests or correct manifests post-receipt.  Transporters that do not already have an EPA ID number will need one if they want to sign electronic manifests.

Facilities can obtain an EPA ID number from their states, except that facilities in Iowa, Alaska and New York will need to request one from their EPA Regional office.  Facilities will need to complete EPA’s Site Identification Form 8700-12 to obtain the EPA ID number.  In states that have opted in to the EPA MyRCRAid electronic submittal program, the form can be submitted electronically.  Facilities will need to complete Items 1-10, 18 and 19 on the form.  Under the reason for submittal on the form, the party should mark “on-going regulated activity.”  If a facility already has an EPA ID, they do not need to do anything further.

The e-Manifest system will be linked to EPA’s RCRAInfo program.  Currently, RCRAInfo is used for electronic submittals of the Site ID Form (8700-12) and Biennial Report (8700-13), for states that have opted in to the electronic reporting.  Once e-Manifest launches, RCRAInfo will also be used for the electronic submittal of the Uniform Hazardous Waste Manifest (8700-22) in all states.  The basic instructions for completing the e-manifest will not be materially different from submitting a paper manifest.  The data elements will remain the same, but the instructions will be updated to address completing the electronic form and signing the form electronically.

Companies can start registering site managers now under the RCRAInfo system for those states that have opted in to the Biennial Report and/or My RCRAid under the RCRAInfo system.  The site manager will have permission to view, prepare and sign forms for their sites, in addition to approving other users in their company.  EPA is recommending that each site register at least two (2) site managers, but they can register more and site managers can be registered for multiple sites.  If a company registers now, they will automatically gain access to the e-Manifest system when it launches.  EPA will announce when registration will be open in all states.

The takeaway is:

  • If you don’t have an EPA ID and will be receiving waste, you need to request an EPA ID from either your state or EPA regional office; and
  • Register now at least two (2) site managers for your company for those states that have opted into the Biennial Report and /or My RCRAid programs.

We will continue to keep you posted on developments as they become available.