The incoming Biden Administration has hinted at what steps it may soon take to regulate per- and poly-fluoroalkyl substances (PFAS), a class of emerging contaminants sometimes called “forever chemicals” that are not currently addressed under most federal environmental statutes though studies link exposure to unsafe levels of PFAS to adverse health impacts.  During the presidential campaign, then-candidate Joe Biden unveiled his “Plan to Secure Environmental Justice and Equitable Economic Opportunity,” which includes key PFAS measures such as setting enforceable limits for PFAS chemicals in the Safe Drinking Water Act (SDWA) and designating PFAS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  Increased federal regulation of PFAS will directly impact municipalities, airports, water utilities and districts, wastewater treatment plants, landfills, manufacturers that produce PFAS or products containing PFAS, and more. 

Major federal regulation of PFAS has yet to occur, though the topic has garnered widespread attention for many years now.  Last year, members of Congress proposed several pieces of federal legislation that would have amended the statutory definition of “hazardous substance” to include certain PFAS, but none of the measures passed.  EPA has taken some steps to regulate PFAS under toxics laws, including issuing a new Significant New Use Rule related to one PFAS chemical, PFOA, under the Toxic Substances Control Act and by making annual reporting obligations applicable to 172 PFAS chemicals under the Toxic Release Inventory.  EPA has also initiated the process to regulate two PFAS chemicals, PFOA and PFOS, under the SDWA by issuing a preliminary determination to regulate the two chemicals in drinking water, the first step towards setting binding Maximum Contaminant Levels (MCLs).  But the precise timing of any final rule setting MCLs for PFAS chemicals remains uncertain, and passing new and stricter environmental regulations has not been a hallmark of the Trump Administration. 

The Biden plan signals that action on PFAS will be a high priority for the new administration – even during a pandemic and an historic recession.  It also reinforces the narrative that the PFAS regulatory landscape is poised for monumental change.  Setting binding MCLs for two PFAS chemicals will focus federal regulatory efforts on PFAS exceedances in drinking water supplies and directly lead to scrutiny of the potential sources of PFAS contamination, including users of Class B firefighting foams like airports and municipalities as well as other potential sources like landfills and manufacturing sites.  Including PFAS in the definition of “hazardous substance” under CERCLA – which EPA can do by regulation without any action by Congress, because the statutory definition incorporates certain regulatory definitions – will transform the CERCLA landscape as parties responsible for PFAS contamination will suddenly face strict, joint, and several liability for releases of PFAS, including for releases that occurred in the past.

Environmental attorneys at Kaplan Kirsch & Rockwell regularly advise airports, municipalities, water utilities and water districts, and other types of clients on regulatory issues related to PFAS, among other contaminants.  For further information, or to discuss your own particular situation, please contact Thomas Bloomfield, Polly Jessen, or Sara Mogharabi.

During the 40^th Annual Pennslyvania Aviation Conference, held in October, Eric Smith was elected to another term as a board member for the Aviation Council of Pennslyvania (ACP). The purpose of the ACP is to represent the Pennsylvania aviation and aerospace community in matters involving government and private sector interests; to improve and promote aviation in partnership with local, state and federal government; and to increase and enhance public awareness of aviation and aerospace.

Eric also gave two presentations at the annual conference, Federal Aviation Administration Compliance Basics and Airports & Financially Distressed Stakeholders – Legal & Practical Considerations for Airport Sponsors

The Federal Railroad Administration (FRA) has issued the Final Rule for Metrics and Minimum Standards for Intercity Passenger Rail Service.  The Final Rule was published in the Federal Register on Monday, November 16, 2020. 

The Final Rule emerges after years of litigation over the mechanism identified in the Passenger Rail Investment and Improvement Act of 2008, Pub. L. 110-432, 122 Stat. 4907 (PRIIA) for establishing standards for determining whether intercity passenger trains, currently all operated by Amtrak are “on time.”  The Final Rule establishes the following measures:

• Whether a train is on time is determined by (a) the percentage of all customers on an intercity passenger rail train who (b) arrive at their detraining point no later than 15 minutes after their published scheduled arrival time, reported by train and route.   49 CFR 273.5(a)(1). (Final Rule at 72,974.)
• The minimum threshold for satisfactory on time performance (OTP) is that 80 percent of customers on a given route must arrive on time for any 2 consecutive quarters.  49 CFR 273.5(a)(2). (Final Rule at 72,975.)
• The Final Rule requires Amtrak to report a ridership metric, which is an aggregated, generalized figure consisting of the number of host railroads to whom Amtrak has provided ridership data, reported by host railroad and by month.  49 CFR 273.5(b). (Final Rule at 72,984.) The Final Rule does not require Amtrak to share ridership data with its state supported route partners. (Final Rule at 72,986.) 

This standard applies to passenger trains beginning “on the first full calendar quarter after May 17, 2021.”  Anticipating ongoing disputes between Amtrak and host freight railroads over scheduling, the Final Rule also introduces a certified schedule metric that allows for Amtrak and the host railroads to negotiate schedules and sets forth a dispute resolution process if the parties disagree.    In the event that Amtrak and a host railroad cannot agree on a train schedule for a particular route before May 17, 2021, they can report the then-applicable schedule as a “disputed schedule” and the customer OTP standard for that disputed schedule will apply beginning on the second full calendar quarter after May 17, 2021. This metric requires Amtrak to report which trains have certified schedules, uncertified schedules or disputed schedules.  Amtrak and the Host Railroad’s CEO must notify Congress of the uncertified schedules on a monthly basis.

If you have questions about the Final Rule, please contact Allison Fultz, Suzanne Silverman, Byron Smith or Charles Spitulnik.

Best Lawyers^® recently announced their “Best Law Firms” rankings for 2021.  Firms considered for the “Best Law Firms” rankings deliver excellent professional services and receive persistent ratings from clientele and peers.  To earn a tiered ranking, firms must demonstrate superior law practice methodologies and have a breadth of legal expertise.  Kaplan Kirsch & Rockwell has been ranked in the following tiers:

National Tier 2

• Land Use & Zoning Law

National Tier 3

• Litigation – Environmental
• Native American Law
• Transportation Law

Metropolitan Tier 1

• Colorado
  • Land Use & Zoning Law
  • Litigation – Environmental

Metropolitan Tier 2

• Colorado
  • Construction Law
• San Francisco
  • Native American Law
• Washington, DC
  • Transportation Law

Metropolitan Tier 3

• San Francisco
  • Environmental Law

On October 5, 2020, the Federal Transit Administration (“FTA”), announced a Notice of Funding Opportunity (“NOFO”) for $10 Million in Public Transportation COVID-19 Research Demonstration Grants.  The FTA’s announcement follows a series of FTA-hosted listening sessions in which public transit agencies asked the FTA to support research to “identify solutions to address the operational changes transit agencies are facing as a result of COVID-19.” 

The COVID-19 Research Demonstration Grants are designed to assist transit agencies in developing, deploying, and demonstrating innovative solutions to improve the operational efficiency of transit agencies and improve the mobility of transit users.  Eligible projects will focus on the following four areas:

• Vehicle, facility, equipment and infrastructure cleaning and disinfection
• Exposure mitigation measures
• Innovative mobility such as contactless payments
• Measures that strengthen public confidence in transit services

More information on the grant application process is available on the FTA’s website, here.  FTA will host two webinars on the COVID-19 Research Demonstration Grants on dates to be announced.  Applications are due November 2, 2020. 

If you have any questions please contact Charles Spitulnik, Allison Fultz, T. Byron Smith, or Suzanne Silverman. 

The Colorado Air Quality Control Commission (AQCC) adopted a series of cutting-edge rules that will further reduce pollution from oil and gas operations in Colorado.  Kaplan Kirsch & Rockwell represented two clients—Environmental Defense Fund and Colorado Communities for Climate Action (CC4CA)—in this rulemaking.  These rules include first-in-the-nation regulations to require monitoring of emissions from the pre-production and initial phases of production, including emissions of air toxics, methane, and ozone precursors.  Under the rules, oil and gas operators will be required to conduct high-frequency monitoring from the start of well drilling until six months after the start of production.  The Commission also adopted a proposal, put forward by firm client CC4CA and other local governments to significantly increase local government involvement in the state’s oil and gas monitoring program.

The Commission also adopted first-in-the-nation requirements that prohibit venting during early stages of well development as well other controls such as requirements to control emissions from natural gas-fired reciprocating internal combustion engines, and controls for class II disposal well facilities.  These regulations are important strides in continuing to reduce pollution caused by oil and gas production.

Firm attorneys have been at the forefront of each of the precedent-setting oil and gas rulemakings before the AQCC over the past decade, including among others, the first statewide rules to address methane pollution from oil and gas facilities, the first state regulations that establish a program for intensity-based targets for the transmission sector, and now the first regulations in the country to require high-frequency monitoring for gas leaks during the preproduction and early production period.

For press coverage regarding these rules, please see the links below:

• Environmental Defense Fund
• The Denver Post
• Denver Business Journal
• The Colorado Sun
• Colorado Politics
• Post Independent 

Firm Attorney Sarah Judkins published a guest opinion in the Boulder Daily Camera supporting Rocky Mountain National Park’s time-entry reservation system.  The reservation system, implemented to help control over-crowding at the Park during the COVID-19 pandemic, is an important public safety measure and has allowed visitors to have safe and positive experiences while enjoying and recreating in Colorado’s beautiful landscapes. Read the full article here. 

Below is an overview of recent updates regarding opportunities for energy microgrid development on tribal lands in California.  Microgrids can provide energy resiliency and stability, especially during wildfires or other events causing major power outages in the state.

Utility Programs Under Development

Each of the three major investor-owned utilities in California – Pacific Gas & Electric (PG&E), San Diego Gas & Electric (SDG&E), and Southern California Edison (SCE) – has new plans to help tribal communities in California develop and implement microgrids and other energy resiliency projects.

Earlier this summer the Colorado Public Utilities Commission issued a decision that requires PG&E, SCE, and SDG&E to develop programs that will promote microgrid deployment and other resiliency projects, including on tribal lands.  In particular, these utilities must: develop standard, pre-approved designs to interconnect resiliency projects to the grid; update their customer tariffs to better accommodate distributed energy storage and the use of storage during power-outage events; implement specific resiliency projects throughout the state; and undertake specific collaboration with tribal and local governments.

The collaboration that the utilities must undertake with tribes has many requirements:

1. The utilities must conduct semi-annual workshops throughout the state to ensure the utilities and tribes are sharing valuable information and taking a collaborative approach to planning grid resiliency measures that are responsive to local needs. 
2. The utilities educate tribal government leaders and staff on grid investment plans in the area and must involve tribes in planning resiliency projects and actions that would affect tribal communities.
3. The utilities must assist tribal governments with crafting their own energy resiliency projects. 
4. The utilities must create a resiliency project engagement guide for tribal and local governments that provides clear pathways for engagement with the utilities and best practices for implementing resiliency projects. 

Each of 3 utilities has filed with the CPUC an overview of its initial resiliency project engagement guide, which should get approved later this year.  PG&E’s proposed program, which it calls the “Community Microgrid Enablement Program,” would provide technical assistance for resiliency projects, as well as additional technical and financial support (primarily through matching funds) for microgrids that are in areas of high fire risk or otherwise could protect critical infrastructure.  The proposed program also includes metrics to prioritize projects, including for those that serve tribal, disadvantaged, and low-income communities.

SCE’s proposal explains that it is expanding its existing “Microgrids for Developers” website to include information needed for tribal and local governments to understand options and best practices for resiliency projects in their areas.  SDG&E has presented a proposal to support tribal and local governments with dedicated staff and resources, regularly engage with tribal and local governments, and expand its Customer Generation webpage to provide more information on resiliency projects.

Ongoing Funding Opportunities

There are ongoing and recurring opportunities from the California Energy Commission, the U.S. Department of Energy, the Bureau of Indian Affairs, and other entities to support microgrid and resiliency project development by tribes.    If you would like us to provide more information on any of these that may be applicable to you, please let us know.

Kaplan Kirsch & Rockwell is proud to be an active member of Worldwide Airport Lawyers Association and proud to have been a participant in many of its conferences and webinars. We congratulate WALA on its successful 2020 webinar series and look forward to seeing our airport lawyer colleagues in person in 2021.

Kaplan Kirsch & Rockwell is proud to announce nine of our attorneys are listed among The Best Lawyers in America© 2021. Thomas Bloomfield, Sara Dutschke Setshwaelo, Allison Fultz, Polly Jessen, Stephen Kaplan, Peter Kirsch, Lori Potter, Sarah Rockwell, and Charles Spitulnik were selected by their peers for inclusion in this year’s list. For the 2021 Edition of The Best Lawyers in America, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition.

• Thomas Bloomfield – Energy Regulatory Law
• Sara Dutschke Setshwaelo – Native American Law
• Allison Fultz – Transportation Law
• Polly Jessen – Construction Law; Environmental Law
• Stephen Kaplan – Land Use and Zoning Law
• Peter Kirsch – Litigation – Environmental
• Lori Potter – Litigation – Environmental
• Sarah Rockwell – Land Use and Zoning Law; Real Estate Law
• Charles Spitulnik – Railroad Law; Transportation Law

Stephen Kaplan was also recognized by Best Lawyers with the 2021 Land Use and Zoning “Lawyer of the Year” award in Denver. This recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location.