EPA Rescinds Guidance on “Functional Equivalent”

On September 15, 2021, the Biden administration announced it was rescinding the Trump administration’s guidance on the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund and the Clean Water Act (CWA), § 402: National Pollutant Discharge Elimination System (NPDES).

In County of Maui v. Hawaii Wildlife Fund (590 US –, 140 S Ct 1462 [2019]), the U.S. Supreme Court addressed whether the CWA’s NPDES requires a discharger to acquire “a permit when pollutants originate from a point source but are conveyed to …

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PFAS Alert: New U.S. EPA Effluent Guidelines Program to take on PFAS

Each year, the U.S. Environmental Protection Agency prepares Preliminary Effluent Guidelines Program Plans pursuant to 33 U.S.C. 1251, more commonly known as the Clean Water Act (CWA). The purpose of these plans is to give an overview of the EPA’s Effluent Limitation Guidelines (ELG), or national standards for wastewater discharges to surface waters and municipal sewage treatment plants. The plans identify industrial categories, existing or new, which have been chosen for ELG regulation, and set forth the expected scope of that regulation.

On September 8, …

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EPA’S Chlorpyrifos Ban Likely to Increase Pesticide Litigation

As we previously reported, the U.S. EPA recently issued its ban on the use of the pesticide chlorpyrifos.

Chlorpyrifos has been widely used in food crop agriculture since the late 1960s. Unlike for the glyphosate-based pesticide commonly sold under the brand name Roundup®, most residential uses of chlorpyrifos were banned in 2001. However, it was not until on August 18, 2021 that the EPA took more aggressive action and banned the use of chlorpyrifos for all agricultural purposes.

Unlike for the weed …

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EPA Bans Use of Pesticide Chlorpyrifos

On August 18, 2021, the U.S. Environmental Protection Agency issued a pre-publication notice of a final rule banning the use of the pesticide chlorpyrifos on food in order to better protect human health. Chlorpyrifos is an insecticide used for a number of agricultural and non-food applications. It has been linked to numerous health risks including neurodevelopmental risks to infants and children, and harm to agricultural workers who work with the pesticide.

Per the final rule, the EPA announced the revocation of chlorpyrifos “tolerances”—which establish the …

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House Takes Steps to Require EPA Regulation of PFAs

On July 21, 2021, the United States House of Representatives passed the PFAS Action Act of 2021 (Act) that would require the Environmental Protection Agency (EPA) to take action to regulate two per- and polyfluoroalkyl (PFAS) substances. PFAS are commonly known as “forever chemicals” due to their ability to persist in the environment, including drinking water supply systems, the human body, and in animal populations as well. The use of PFAS chemicals has been widespread throughout the world as a result of their resistance to …

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9th Circuit: EPA’s Review of Methylene Chloride Will Remain Limited for Now

Methylene chloride (MC) is used as a paint-stripping solvent, an aerosol propellant, in the manufacture of film, and as a solvent in drug manufacturing. In the research laboratory and in food production, it is commonly used for extractions. It has also been clinically demonstrated to cause liver and lung cancer in animals and may be a carcinogen to humans, causing severe irritation and burning to the skin and eyes with exposure above recommended levels.

Because of these risks and in response largely to public pressure, …

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EPA Reroutes a “Path Forward” for TSCA Chemical Risk Assessments

In response to recent Executive Orders issued by President Biden, the U.S. Environmental Protection agency recently announced that it will be changing how it evaluates chemical risk under the Toxic Substances Control Act (TSCA). These changes will affect risk evaluations going forward, as well as 10 chemicals already evaluated by the EPA under the last administration. The EPA stated that the policy change is meant to ensure the public is protected from unreasonable risks from chemicals in the marketplace while relying on support that is …

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EPA Increases Pressure on Manufacturers (and Importers) of TSCA High-Priority Substances

On June 29, 2021, the U.S. EPA published a final rule requiring manufacturers (including importers) of 50 specified chemical substances to report certain lists and copies of unpublished health and safety studies to EPA. 86 Fed. Reg. 34147. The EPA’s final rule was issued pursuant to Section 8(d) of the Toxic Substances Control Act (TSCA) and the TSCA Health and Safety Data Reporting rule codified at 40 C.F.R. Part 716. The EPA established detailed reporting requirements for chemical substances added by the final rule to …

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Supreme Court Sides with Refineries in Battle over Exemptions from Fuel Blending Requirements

In a 6-3 ruling on June 25, 2021, in HollyFrontier Cheyenne Refining LLC et al. v. Renewable Fuels Association et al., the Supreme Court of the United States (SCOTUS) sided with the oil refineries in a dispute with biofuel producers. The ruling overturned a Tenth Circuit decision that voided extensions of waivers from the Renewable Fuel Standard (RFS) requirements under the Clean Air Act granted by the United States Environmental Protection Agency (EPA), even though the prior exemptions had expired.

Renewable Fuel Program

Under the …

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A Change is Gonna Come … (and it’s kinda sorta already here)

The legendary singer/songwriter Sam Cooke may have intended for his 1964 anthem, “A Change is Gonna Come,” to be a protest song to surreptitiously fuel the civil rights movement and its pursuit of social justice, but little did he know the soulful R&B melody may realize its revival in the Biden administration as the U.S. Environmental Agency’s (EPA’s) new battle cry for environmental justice.

The EPA defines environmental justice (EJ) academically as “the fair treatment and meaningful involvement of all people, regardless of race, color, national origin, …

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