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.

The ink is barely dry on the reclassification of the Chicago ozone nonattainment area from moderate to serious, under the 2008 ozone National Ambient Air Quality Standards (NAAQS), and the Illinois Environmental Protection Agency (IEPA) intends to seek redesignation to attainment.  According to IEPA staff, the agency has data supporting a request for redesignation to attainment of the 2008 NAAQS based on the latest 2019 monitoring values.  The IEPA’s goal is to submit the request for redesignation to the U.S. Environmental Protection Agency (USEPA) in January 2020.

Just this summer, the IEPA sent letters to affected sources to provide notification of the September 23, 2019 reclassification.  Those letters stated that the IEPA would give sources one year, or until September 23, 2020, to apply for an initial Clean Air Act Permit Program (CAAPP) permit or, to avoid CAAPP permitting, a federally enforceable state operating permit (FESOP) or a revised FESOP, if needed, to remain below the new major source level of 50 tons per year for VOM and NOx.  While the IEPA expects USEPA to take final action redesignating the area to attainment by that date, there are no guarantees.   According to IEPA staff, if there are high temperatures early in the summer and USEPA still has not acted, the redesignation could be in jeopardy,  The IEPA is advising affected sources to be prepared to submit permit applications consistent with the major source levels now in effect by the September 23, 2020 deadline.

Sources should also be aware that, even if the Chicago area is redesignated to attainment under the 2008 ozone NAAQS, the more stringent 2015 ozone NAAQS is still in effect.  Under that standard, Chicago is currently classified as a marginal area.  However, the IEPA staff recently stated that it is a certainty that the area will be bumped-up to moderate sometime in 2022.  The IEPA already has monitoring data showing that the area will not attain the lower 2015 NAAQS by the August 2021 attainment date.  It remains to be seen whether the IEPA will be required to adopt new regulations to meet the 2015 NAAQS, as emissions from mobile sources continue to decline.

The takeaway is that, given this uncertainty, affected VOC and NOx sources should proceed under the assumption that the Chicago area will continue to be designated as a serious area under the 2008 NAAQS, unless and until USEPA states otherwise.  This would include preparing any applications for a CAAPP permit, FESOP or revised FESOP as a result of the bump-up, but holding off on submittal until the current September 23, 2020 deadline, to see how it all plays out.

No Further Remediation Letters have become an established part of the regulatory landscape. These letters serve many purposes, including reducing uncertainty over future clean-up obligations and signifying that the property is “clean enough” for development. But the process can take time, which in some instances delays transactions and increases cost.

To address these delays, the Illinois Environmental Protection Agency (“IEPA”) has stated that it intends to move forward with an expedited No Further Remediation (“NFR”) Letter program by the end of the year. According to IEPA, this program will be modeled after the currently available program for air and water permits. Under the current program, an applicant is required to enter into a contract and pay an upfront fee that is intended to cover the cost of overtime review of the applicant’s Site Remediation Program (“SRP”) application and supporting documents, such as a Remedial Action Plan, Comprehensive Site Investigation Report, Remedial Objectives Report, Remedial Action Completion Report, etc. In turn, IEPA provides an estimated ‘guaranteed’ date by which IEPA will issue the permit.

Currently, the expedited permit fee is four times the standard permit fee required for the requested permit, provided that the expedited permit fee shall not exceed $100,000. 415 ILCS 5/39.14(c). For recurring permit fees, the expedited permit fee is four times the amount of the recurring fee on a one-time basis for each expedited permitting action. Id. If an owner or operator is not required to pay a standard permit fee for the requested permit, the amount of the expedited permit fee is mutually agreed upon by the Agency and the applicant. Id.

Under the new program, IEPA will likely require the applicant to pay a similar fee arrangement and sign an agreement in exchange for a ‘guaranteed’ date by which IEPA will issue the NFR Letter. This program should make compliance with environmental regulations less burdensome and may prove valuable to developers who desire greater certainty for when a transaction will close. It is also encouraging that the IEPA has recognized regulatory delays are never good for property development projects.

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