Environmental Vanguard is a quarterly newsletter from McGuireWoods, sharing key insights from our leading environmental attorneys and consultants at the forefront of regulatory, litigation and policy developments. This issue covers a variety of hot-button issues in the environmental field, from state regulatory efforts to address issues du jour — including PFAS, data centers and elevated temperature landfills (ETLFs) — to a federal investigation report reinforcing the need for safety in refining fuel sources. Rounding out the issue are discussions of two court decisions that shed light on issues that are sure to grow in prevalence in the litigation sphere: defending permits received under the Clean Water Act and navigating novel climate torts.
Look for new editions every quarter, and feel free to reach out to the McGuireWoods team with questions about litigation, regulatory, enforcement or other issues in environmental law.
I. Virginia Enacts New PFAS Regulations for Biosolids
During its 2026 legislative session, the Virginia General Assembly passed companion bills establishing the Commonwealth’s first regulatory framework for per- and polyfluoroalkyl substances (PFAS) in sewage sludge, also known as biosolids. The legislation received broad bipartisan support, and Gov. Abigail Spanberger signed the bill into law in early April 2026. The new law responds to growing public concern that biosolids applied as fertilizer on Virginia farmland (land-applied sludge) may be contaminated with PFAS. The Virginia legislature took this action on land-applied sludge to fill the void left by inaction at the federal level.
Beginning Jan. 1, 2027, any owner of a sewage treatment works that land-applies, markets or distributes sewage sludge in Virginia must collect monthly samples of the finished product and have them analyzed for PFAS by an accredited laboratory using EPA Method 1633. After the initial year, testing may be reduced to a quarterly schedule with approval from the Department of Environmental Quality (DEQ). Facilities located outside of Virginia that supply sludge for land application within the Commonwealth are subject to the same testing requirements.
Starting in July 2027, the law establishes a three-tier management system based on rolling 12-month averages of two PFAS chemicals currently regulated as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation, and Liability Act. They are perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) with concentrations:
- ≥ 50 µg (microgram)/kg: Land application prohibited. Owner must arrange alternative treatment/disposal until subsequent testing confirms levels drop below 50 µg/kg.
- ≥ 25 but < 50 µg/kg: Land application limited to three dry tons/acre. Permit holders must notify landowners of PFOS/PFOA concentrations via email or mail.
- < 25 µg/kg (PFOS and PFOA): Land application permitted per existing permit with no additional requirements. Permit holders must notify landowners of PFOS/PFOA concentrations via email or mail.
A single test result exceeding 75 µg/kg triggers immediate retesting, and a second elevated result halts land application altogether. Effective July 1, 2029, the threshold shifts from measuring PFOS or PFOA individually to measuring their combined concentration, tightening the standard further.
Beyond monitoring and enforcement, the legislation directs DEQ to convene a working group — drawing on owners of sewage treatment works, private biosolids companies, relevant nonprofits and other stakeholders — to study and recommend approaches to reduce PFAS in sewage sludge, with findings due to the governor and relevant legislative committees by Nov. 1, 2027. Complementary legislation passed during the same 2026 Virginia General Assembly session bolsters these efforts by requiring publicly owned wastewater treatment plants to mandate that their industrial users test for PFAS and report results to DEQ (SB138/HB938). Additionally, HB 1072 clarifies that localities may adopt ordinances to test and monitor land-applied sludge for PFAS within their boundaries.
Virginia’s approach places it among a growing minority of states that regulate PFAS in biosolids, taking a middle path between states such as Maine and Connecticut — which have imposed outright bans on land application — and those that have no restrictions at all. Virginia’s Department of Planning and Budget estimates that implementation will cost state regulators approximately $625,000 per year.
II. Maine Governor Vetoes First Statewide Data Center Moratorium
Data centers — and their heavy demands on energy grids, water and land — have become a flashpoint for state regulation. More than 300 data center-related bills were introduced in 30 state legislatures in the first six weeks of 2026 alone. On April 24, 2026, Maine Gov. Janet Mills vetoed LD 307, which would have made Maine the first state to impose a statewide moratorium on large data center construction. The bill passed the House (79–62) and Senate (21–13) with bipartisan support. It would have barred any municipality or state agency from issuing permits for data centers with a load of 20 megawatts (MW) or more until Nov. 1, 2027, while a newly created Maine Data Center Coordination Council evaluated impacts on ratepayers, grid reliability and the environment.
In her veto letter, Mills acknowledged that “a moratorium is appropriate given the impacts of massive data centers in other states on the environment and on electricity rates” but said the bill was unacceptable because it did not exempt a $550 million data center redevelopment project at a former mill site in the town of Jay. The legislature rejected an amendment that would have carved out the Jay project. Mills announced she would issue an executive order establishing a council to examine data center impacts and, separately, signed LD 713, which prohibits data center projects from receiving the state’s business development tax incentives.
Data published in 2025 by the U.S. Energy Information Administration showed that Maine experienced the largest year-over-year residential electricity price increase in the country — approximately 36% from May 2024 to May 2025 — although state officials disputed the methodology and said actual increases were significantly lower. Maine’s experience is part of a broader national trend: Moratorium proposals were introduced in New York, Vermont, South Dakota and Oklahoma, among other states; municipalities in several states, including Maryland, Michigan, Illinois and Georgia, enacted their own moratoriums or restrictive zoning frameworks; and Sen. Bernie Sanders and Rep. Alexandria Ocasio-Cortez have introduced a federal moratorium bill in Congress. That a moratorium cleared both chambers in a state with few or no operating large-scale AI data centers suggests that preemptive regulation is a growing trend nationwide. Notably, LD 307’s 20 MW threshold is keyed to a facility’s total electric “load,” not its draw from the grid. The bill contained no carve-out for behind-the-meter generation — power produced on-site solely for the data center’s use. Other states have taken a different approach. For example, Oklahoma’s HB 2992, a ratepayer-protection measure, expressly excludes behind-the-meter projects from its large-load regulations. Developers should expect heightened scrutiny and pursue early stakeholder engagement wherever they plan to build new facilities.
III. Elevated Temperature Landfills: Risk Mitigation Steps
ETLFs have emerged as a significant environmental and legal concern across the United States, posing complex challenges for regulators, facility operators and surrounding communities. An ETLF is a municipal solid waste landfill that experiences subsurface reactions generating sustained, subsurface elevated temperatures between 131 and 145°F, often far exceeding temperatures produced by normal decomposition. When temperatures rise beyond expected thresholds, they can compromise the structural integrity of engineered containment systems — including liners, leachate collection systems and gas management infrastructure — leading to increased risks of groundwater contamination, toxic gas emissions and surface instability. Major ETLF sites have drawn national attention, prompting enforcement actions, consent decrees and protracted litigation involving federal and state environmental agencies, private operators and affected residents.
California is leading state-level actions to address landfill management with the stated intent to curtail the transformation of healthy landfills into ETLFs. Assembly Bill 28, currently on the Senate inactive file, would establish a tiered compliance framework keyed to gas temperature thresholds with corrective action requirements and penalties of up to $1 million per week. In November 2025, the California Air Resource Board adopted the most stringent landfill methane rules in the country. It also proposed April 2026 amendments that would add a 145°F downwell monitoring trigger requiring corrective action within one week. Colorado, Oregon and Washington have also adopted monitoring and emissions rules exceeding federal requirements. Other state environmental agencies are monitoring these developments and drafting legal contingency plans with the intent to prevent the proliferation of ETLFs. At the federal level, no ETLF-specific rulemaking is underway, though the EPA’s April 2026 interim PFAS guidance flagged higher PFAS concentrations in leachate from elevated temperature landfills, which may invite additional scrutiny.
Given these mounting legal and regulatory pressures, landfill operators should prioritize deploying real-time subsurface temperature monitoring, maintaining rigorous waste acceptance documentation and developing site-specific contingency plans triggered by early thermal indicators. Operators should also secure environmental and pollution legal liability insurance, as standard commercial general liability policies frequently exclude gradual pollution events. Early and transparent engagement with state and federal regulators can reduce enforcement risk and strengthen an operator’s position in any subsequent litigation. Together, these concrete steps can substantially reduce legal exposure and help prevent environmental failures that have defined the most prominent ETLF disputes to date.
IV. Chemical Safety Board Report on Fatal Hydrogen Sulfide Release Highlights Systemic Process Safety Failures
On Feb. 23, 2026, the U.S. Chemical Safety and Hazard Investigation Board (CSB) released its final report on a fatal hydrogen sulfide release that occurred on Oct. 10, 2024, at the PEMEX Deer Park Refinery in Deer Park, Texas. Two contract workers died, and 13 others were taken to local medical facilities for evaluation. More than 27,000 pounds of hydrogen sulfide escaped into the atmosphere, and officials in the neighboring cities of Deer Park and Pasadena issued shelter-in-place orders that lasted several hours. PEMEX Deer Park reported approximately $12.3 million in property losses from the resulting shutdown of its Amine Unit and downstream processes. The CSB’s report details a series of preventable failures with broad implications for any company that handles hazardous chemicals.
During maintenance in the refinery’s Amine Regeneration Unit, contract workers from Repcon, Inc. mistakenly opened a flange on piping that contained pressurized hydrogen sulfide rather than the adjacent, depressurized segment identified in the work permit. The release killed one Repcon worker at the scene. The hydrogen sulfide then traveled downwind into an adjacent unit, killing a worker employed by another contractor, ISC Constructors. The release continued for nearly one hour before emergency responders reassembled the leaking flange.
The CSB identified four key safety issues:
- Positive Equipment Identification
The refinery had no effective method to confirm which piping flange workers should open before work began. Drawings and flange lists could not distinguish nearly identical piping segments, and the identification tag for the correct flange was out of view. The CSB noted that accidental releases caused by opening the wrong equipment are common across the chemical and refining industries and that no industrywide standard currently addresses this hazard.
- Work Permitting and Hazard Control
The refinery issued a single broad work permit covering multiple jobs with varying hazards and no clear hold points. Workers overlooked a written instruction to stop and wait for an operator before opening the hydrogen sulfide piping. The permit also failed to address the risk of opening piping in an operational unit upwind of other contractors.
- Turnaround Contractor Management
On the day of the incident, PEMEX Deer Park reassigned workers from a shutdown unit to a partially operational unit containing hydrogen sulfide. The workers were not briefed on the hazards of the new environment and believed they were still working in the shutdown area.
- Conduct of Operations
The CSB found significant gaps between the refinery’s written procedures and actual workplace practices. Although the refinery’s policies aligned with industry standards, management and operations personnel often misunderstood or deviated from them, contributing to the work-permitting and hazard-evaluation failures that led to the release.
The CSB issued recommendations to PEMEX Deer Park and the American Society of Mechanical Engineers (ASME). It recommended that PEMEX Deer Park (1) label all piping in the relevant units in accordance with ANSI/ASME A13.1, (2) develop procedures ensuring that any craftworkers introduced to or removed from a unit in Positive Isolation Status receive instructions on the hazards, safeguards and requirements of the work before beginning in a new area, and (3) establish a conduct-of-operations system consistent with Center for Chemical Process Safety guidance. The CSB also recommended that ASME develop written guidelines for marking equipment for opening.
These findings arrive as EPA reconsiders its Risk Management Program regulations under Clean Air Act Section 112(r). On Feb. 24, 2026, the EPA proposed the “Common Sense Approach to Chemical Accident Prevention” rule, which would rescind or scale back several requirements imposed by the 2024 Safer Communities by Chemical Accident Prevention rule. In this shifting regulatory landscape, the CSB’s independent, root-cause investigations — and the practical lessons they yield — remain an important resource for stakeholders navigating compliance expectations.
V. Washington State Court to Address Novel Climate Tort Notwithstanding Supreme Court’s Upcoming Guidance
Though the U.S. Supreme Court will soon decide “[w]hether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate,” at least one state court is not waiting to address novel state law theories of liability.
In May 2025, a plaintiff filed a wrongful death action in Washington state court against fossil fuel producing companies, alleging that her mother’s death during a 2021 Pacific Northwest heatwave was a direct and proximate result of decades of allegedly deceptive marketing and a failure to warn about the climate-related dangers of defendants’ products. The Leon plaintiff asserts state law statutory and common law tort claims on the theory that defendants learned that the greenhouse effect could have consequences to public safety, yet concealed and misrepresented those dangers to consumers. Leon is widely regarded as the first wrongful death suit in the United States to seek to hold fossil fuel producers individually liable for a climate-related death.
With the Leon case at an early stage, the defendants jointly moved to stay the proceedings pending the U.S. Supreme Court’s resolution of County Commissioners of Boulder County v. Suncor Energy USA, Inc., in which the Court granted certiorari on Feb. 23, 2026, to decide the interplay between state and federal law in deciding climate change related tort questions.
For the defendants, a stay made good sense: Boulder County could be dispositive of the preemption questions presented in Leon, so parallel proceedings would waste resources all around. But the plaintiff opposed, contending that Boulder involves only municipal damages claims tied to emissions and is unlikely to control a personal-injury suit grounded in deception and failure-to-warn theories. The plaintiff also pointed to a growing trend of trial court orders from Hawaiʻi to Baltimore that denied or limited stay motions in similar cases. Ultimately, the Leon court denied the motion to stay, finding that a stay was inappropriate under Washington’s standards. And separately, the Washington court reasoned it would not hold parties to the mercy of a Supreme Court case that may or may not bear on the narrow parameters presented in Leon. While both cases deal with climate torts generally, the Leon court preemptively distinguished Boulder County based on Leon’s theory of liability.
Leon signals an important evolution in climate litigation. Municipal damages suits had their day in the sun, but the plaintiff’s bar is beginning to try individual tort claims, including wrongful death actions, premised on consumer-protection-style theories rather than emissions liability per se. As the plaintiff’s briefing emphasizes, framing claims around deception and failure to warn — rather than as challenges to emissions — may insulate plaintiffs from the Clean Air Act and structural preemption defenses that have historically driven dismissals in federal court climate cases. And at least one state court facially endorsed that line-drawing.
It is far too early to tell what Boulder County’s certiorari grant will mean for environmental torts. But not everyone is waiting idly for the Supreme Court to hand down its guidance. Even if Boulder County eventually narrows municipal liability, deception-based and product-warning claims may continue to advance in state court.
VI. Second Guessing Clean Water Act Permits
On April 21, 2026, the U.S. District Court for the Southern District of West Virginia set aside a Clean Water Act § 404 permit that the U.S. Army Corps of Engineers issued to Republic Energy, LLC for the Turkeyfoot Surface Mine in Raleigh County, West Virginia. The permit authorized Republic to discharge fill material into roughly 3.86 miles of streams and 1.79 acres of wetlands across four valley fills as part of a 1,085-acre mountaintop surface coal mining operation. A coalition of environmental groups challenged the permit as arbitrary and capricious under the federal Administrative Procedures Act, 5 U.S.C. §551 et seq.
The court agreed, holding that the Corps’ issuance of the permit did not withstand judicial scrutiny. It vacated the permit in full for three independent grounds.
First, the court rejected the Corps’ reliance on West Virginia’s § 401 water quality certification as “conclusive,” finding that an EPA comment letter detailing concerns about secondary and cumulative downstream impacts — including elevated conductivity and ionic pollution — triggered the Corps’ independent obligation to consider those concerns under 33 C.F.R. § 320.4(d).
Second, the court found the Corps failed to grapple with a scientific consensus reflected in studies dating from 2008 through 2023 that valley fills increase downstream conductivity and degrade aquatic life, and failed to meaningfully distinguish Turkeyfoot from prior mines (such as Reylas and Black Castle) where the same “bottom-up” construction and weathered-sandstone underdrain methods had not prevented downstream impairment.
Third, the court held that the performance standard — a West Virginia Stream Condition Index score of 70 for mitigation streams — was irrational because it sat below the 72-point impairment threshold and below the streams’ pre-mining baselines, with no reasoned explanation.
This decision is a pointed reminder that a state § 401 certification is not a regulatory shield once the EPA flagged substantive water quality concerns, even informally and without invoking § 320.4(d) by name.
The environmental team at McGuireWoods helps clients navigate complex regulatory challenges, permitting, enforcement actions, litigation, and crisis response across air and climate, water, waste, and natural resources. McGuireWoods Consulting adds critical depth with lobbying, policy advocacy, and site selection and incentive negotiations, helping businesses manage risk and capitalize on opportunities in a shifting regulatory landscape. For questions or to discuss these topics in more detail, contact the authors or your McGuireWoods or McGuireWoods Consulting contact.
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