Michigan Court of Appeals Strikes State PFAS Drinking Water Standards

On August 22, 2023, a split panel of the Michigan Court of Appeals held that the Department of Environment, Great Lakes, and Energy (EGLE) violated the Administrative Procedures Act (APA) by promulgating a new rule establishing drinking water standards for seven PFAS[1] compounds. The required regulatory impact statement (RIS) did not consider compliance costs associated …

Ohio Supreme Court Unanimously Affirms Siting Board Certificate for New Wind Farm

Emerson Creek project in Huron and Erie Counties Now Expected to Move to Construction  On July 27, 2023, the Supreme Court of Ohio, in a 7-0 decision, affirmed the Ohio Power Siting Board (“Board”)’s decision to issue a certificate for environmental compatibility and public need (“Certificate”) to construct the Emerson Creek Wind Farm, effectively authorizing …

U.S. EPA Adopts ASTM 2021 Phase I Standard for Parties Seeking New Owner/Operator Liability Defenses Under CERCLA

On December 15, 2022, U.S. EPA issued its final rule adopting the ASTM E1527-21 standard for Phase I environmental site assessments as meeting the All Appropriate Inquiries (AAI) requirement to qualify for new owner and operator defenses against liability under CERCLA.[1]  The rule becomes effective February 13, 2023.  U.S. EPA is sunsetting the use of …

U.S. EPA Proposed Listing of PFOA and PFOS: The Effects and Costs of Forever Chemicals

On September 6, 2022, the U.S EPA’s long-awaited proposed rule to list perfluorooctanoic acid (PFOA) and perluoroocanesulfonic acid (PFOS) as CERCLA hazardous substances was published in the Federal Register (Proposed Rule).[1]  This triggers a 60-day public notice and comment period. As the first compounds ever proposed for hazardous substance listing under Section 102(a) of CERCLA, …

California Proposes Further Changes to Proposition 65 Short-Form Warnings

On December 13, 2021, the California Office of Environmental Health Hazard Assessment (“OEHHA”) issued another notice in its efforts to amend the short-form warning regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Beginning in 2018, companies could comply with Proposition 65 by using the short-form warning.  …

The PFAS Roadmap: Pathway to Environmental Justice

In October 2021, the United States Environmental Protection Agency (USEPA) issued its PFAS Roadmap, establishing a comprehensive, three-year plan to address the potential risks posed by this large class of manmade compounds, often referred to as “forever chemicals.” The Roadmap takes a “whole of Agency” approach to address the risks of PFAS, outlining a wide …

Ohio Enacts Sweeping Energy Legislation: HB 6 Bails Out Nuclear, Coal Rolls Back Renewables and Energy Efficiency Opponents Pursue Referendum

Ohio’s longstanding energy policy debate came to a (temporary) conclusion on July 23, 2019, when Governor Mike DeWine (R) signed House Bill (HB) 6 into law.  The bill will have significant consequences for existing electricity resources in the region, as well as Ohio’s renewable portfolio standard and energy efficiency programs.  Of course, that’s only if …

Great Lakes Water Diversions – Continued Controversy

Two recent petitions challenging water diversions, one in Wisconsin and another in Michigan, reflect the continued controversy over water rights and usage that have implications, environmental and otherwise, for energy producers and transporters. On May 25, 2018, Midwest Environmental Advocates (“MEA”) filed a petition challenging the Wisconsin Department of Natural Resources’ (“Wisconsin DNR”) April 25, …

Ohio Revises Administrative Regulations Associated With Commercial-Scale Wind Farms

On March 15, 2018, the Ohio Power Siting Board (OPSB) finalized proposed additions and revisions to administrative regulations associated with commercial scale wind farms. The finalized rule package is the result of a two-year review process, complete with three separate stakeholder comment periods, an opportunity for rehearing, and numerous different iterations of proposed rules. A …

Controlled Burn: The Department Of Justice Announces It Will Not Rely On Agency Guidance Documents In Affirmative Civil Enforcement Cases

On January 25, 2018, Associate Attorney General Brand issued a memorandum titled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” (the “Brand Memo“) which clarified that Department of Justice (the “Department“) civil litigators may not rely on guidance documents issued by executive branch agencies when enforcing federal regulations via affirmative civil enforcement …