EPA Announces “Most Comprehensive Cross-Agency Action Plan for a Chemical of Concern” in History of EPA for PFAS

Today, U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler announced from Region 3 in Philadelphia, what EPA is describing as the most comprehensive cross-agency action plan for a chemical of concern in the history of EPA – the Action Plan for per- and polyfluoroalkyl substances (PFAS). The PFAS Action Plan has five primary components:

EPA is moving forward with the process to establish a federal Maximum Contaminant Level (MCL) under the Safe Drinking Water Act for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), which will include examination of other types of PFAS. If EPA does in fact adopt an MCL – a lengthy process – that MCL may become an applicable or relevant and appropriate requirement (ARAR) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Remedy selection under CERCLA requires consideration of protectiveness and ARARs. For groundwater, the ARARs are the Maximum Contaminant Level Goals or the Maximum Contaminant Levels. That means, if EPA adopts a federal MCL, it might turn into a de facto cleanup standard for groundwater.
Continuing enforcement actions – EPA is currently involved in eight direct enforcement actions. EPA initiated the regulatory development process for listing PFOA and PFOS as hazardous substances under CERCLA. EPA plans to release interim groundwater cleanup recommendations.
Expanding monitoring by including PFOA/PFOS for the second time on the list of chemical contaminants for the next Unregulated Contaminant Monitoring Rule (UCMR) and considering PFOA/PFOS data for the Toxic Release Inventory.
Expanding research efforts, including fate and transport pathways.
Risk communications.

According to Wheeler, EPA has not set a new MCL since the Safe Drinking Water Act was amended in 1996 and timing remains unclear.

Significant Environmental Cases in Pa. Courts During 2018 (Part 2)

By Greenberg Traurig on January 24, 2019 Posted in Court Cases, DEP, Environment, Litigation, Oil & Gas, Pennsylvania, Permitting

Part 2 of this series on the large number of environmental cases decided by the Pennsylvania appellate courts in 2018 discusses enforcement, the Oil and Gas Act, valuation, and a few other cases of note.

Read David G. Mandelbaum’s article from The Legal Intelligencer supplement Pa. Law Weekly, “Significant Environmental Cases in Pa. Courts During 2018 (Part 2).”

Martinez v. Colorado Oil and Gas Conservation Commission Update

By Casey A. Shpall on January 22, 2019 Posted in Colorado, Court Cases, GT Alert, Legislation, Oil & Gas

On Jan. 14, 2019, the Colorado Supreme Court held in Martinez v. Colo. Oil & Gas Conservation Comm’n, that the Colorado Oil and Gas Conservation Commission (Commission) properly denied a petition requesting that it adopt a rule that would halt the drilling of oil and gas wells for the foreseeable future.

The Supreme Court’s decision reinforces the Commission’s authority to regulate public health and environmental concerns, but not to the detriment of its charge to foster responsible, balanced development of the resource. A likely outcome of the decision will be proposed legislation seeking to alter the balance of current law, and further requests to the Commission for rulemaking to give local governments and other stakeholders more opportunities to address the issues raised in this case.

To read the full alert, click here.

Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

By Greenberg Traurig on January 22, 2019 Posted in Court Cases, Environment, Environmental Rights Amendment, Pennsylvania, Pennsylvania, State & Local, Stormwater, Uncategorized, Waste

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; Sewage Facilities Act (Act 537); and stormwater, earth disturbance, and stream encroachment.

Read David G. Mandelbaum’s 42 Pa. L. Weekly 74 (Jan. 22, 2019), “Significant Environmental Cases in Pa. Courts During 2018 (Part 1).”

Anticipating Environmental Issues in an Economic Downturn: 2019 Edition

By David Mandelbaum and Curtis B. Toll on December 27, 2018 Posted in Contamination, Environment, Insurance, Risk management

On the morning of Dec. 25, the News Analysis on page A1 of the New York Times led off with this cheery holiday thought: “Sometime in the last couple of months, predictions of a major economic downturn or recession in 2019 went from being a crank view to the conventional wisdom.” At the front end of the Great Recession, we offered some ways in which businesses and others could protect themselves against environmental liabilities flowing from bad economic times. See “Anticipating Environmental Issues in an Economic Downturn,” Natural Resources & Environment, Vol. 24, No. 1 at 33 (Summer 2009). Many of those observations still hold.

Primarily, entities have often managed their environmental liabilities to clean up historic contamination or to maintain current compliance through agreements. Some may be direct: one party agrees to indemnify another party. Others may be indirect: the regulator agrees to seek compliance from one party first and the other party only as a backup. See “Managing Environmental Obligations: Tracking ‘Environmental Debtors,’” 35 Pa. L. Weekly 196 (Feb. 28, 2012), posted on this blog here.

Those arrangements collapse if the party with the environmental obligation cannot or will not perform due to other financial stress. The problem can be as simple as the new owner failing to pay the electric bill to power the pumps on a groundwater pumping system or allowing its housekeeping to lapse.

Now may be a time to inventory the environmental “debts” one is owed. If the debtor seems fragile, one may want to consider one’s options.

One option that is more common now is excess of indemnity insurance coverage. Rather than insist that that new owner somehow secure its obligations, you can insure against its default. It is a tool in the box if not new, then more commonly used, since 2009. Excess of indemnity approaches can insure over first-party performance obligations or more conventional third-party claims such as bodily injury and property damage causes of action. In cases where responsible parties have assumed cleanup obligations under a consent decree or administrative order on consent, the insurance can safeguard a prospective purchaser or lender from the risks associated with the responsible party’s default.

Staying in Lane Under the Environmental Rights Amendment

By Greenberg Traurig on December 26, 2018 Posted in Court Cases, DEP, Environment, Environmental Rights Amendment, Pennsylvania, Pennsylvania, State & Local

The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter the authority of the ZHB or its procedures. On the other hand, the Environmental Hearing Board seems to have held previously that the amendment requires the Department of Environmental Protection (DEP) to engage in an environmental assessment of some sort before granting a permit.

Read David G. Mandelbaum’s Dec. 20 article from The Legal Intelligencer, “Staying in Lane Under the Environmental Rights Amendment.”

New York to Propose Stringent Drinking Water Standards

By Robert M Rosenthal and Steven C. Russo on December 21, 2018 Posted in Contamination, New York, State & Local, Water

On Dec. 18, 2018, the New York State Drinking Water Quality Council, in consultation with the Departments of Health and Environmental Conservation, recommended drinking water standards for three so-called “emerging contaminants” – 1,4-Dioxane, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The recommended “maximum contaminant levels” or “MCLs” are one part per billion (ppb) for 1,4-Dioxane, and 10 parts per trillion (ppt) for PFOA and PFOS. The state announced in its press release that, if adopted, the new standards for these contaminants would be the “nation’s most protective.” The next step is for the Department of Health to issue a proposed rulemaking that will begin the formal process to adopt these new standards into law, something the agency is expected to initiate over the next 60 days. The proposed rulemaking will include a public comment period of at least 60-days. The expectation is that the Department of Health will formally adopt the new MCLs by the end of 2019.

The detection of 1,4-Dioxane, PFOA and PFOS in drinking water supplies around the state came to light from recent testing performed by water districts pursuant to a regulation promulgated by the Environmental Protection Agency in 2012. Section 1445(a)(2) of the Safe Drinking Water Act, 42 U.S.C. § 300j-4(a)(2), requires EPA to issue every five years a new list of no more than 30 unregulated contaminants to be monitored by public water systems. On May 2, 2012, EPA issued its third Unregulated Contaminant Monitoring Regulation, requiring public drinking water supplies to conduct monitoring for 29 previously unregulated contaminants, including 1,4-Dioxane, PFOA and PFOS. See 77 Fed. Reg. 25859, 26074 (May 2, 2012). Subsequent testing performed by water districts indicated the existence of these contaminants at relatively low levels in several drinking water supplies around the state, including in several water supplies on Long Island, and in Hoosick Falls, Newburgh and Plattsburgh.

The detection of 1,4-Dioxane, PFOA and PFOS in water supplies, in turn, caused the Cuomo administration to include in its 2017-18 budget the creation of New York State Drinking Water Quality Council, which was tasked with making recommendations to the Department of Health related to the regulation of emerging contaminants. See Public Health Law § 1113. 1,4-Dioxane, PFOA and PFOS were highlighted as examples of the types of contaminants to be regulated. Id. § 1112(3)(c). The council has since held public meetings regarding the regulation of these contaminants, most recently on Dec. 18, 2018, when it announced the recommended MCLs.

Once finalized by the Department of Health, the MCLs for 1,4-Dioxane, PFOA and PFOS will require the modification of treatment facilities around the state, at significant cost. For example, while 1,4-Dioxane is a volatile organic compound (VOC), traditional systems used to treat VOCs, like air strippers and activated carbon, cannot alone remove 1,4-Dioxane from water supplies. Reports show that installation of an Advanced Oxidation System that uses ultraviolet radiation and either ozone or hydrogen peroxide are effective in removing 1,4-Dioxane. By contrast, PFOA and PFOS are relatively easily removed by activated carbon systems. Water Districts in New York can apply for funding through the Environmental Facilities Corporation, which will provide up to 80 percent of the cost to fund these new systems.

In addition, the new standards are expected to impact landfill operations. For example, while 1,4-Dioxane is used as a stabilizer in some solvents, it is also included in personal care products, including detergents, dishwashing soaps, shampoos, cosmetics, deodorants, and body lotions. PFOA also comes from common household products, like non-stick pans, furniture, cosmetics, household cleaners, clothing, and packaged food containers. PFOS is used as a fabric protector and is often included as an active ingredient in fire-fighting foam. Since each of these contaminants is included in household products, one can expect they will also turn up in landfill leachate, which is typically treated on-site or taken off-site to be disposed at a sewage treatment plant. The New York State Department of Environmental Conservation is in the process of conducting a study to determine the prevalence of these contaminants in landfill leachate around the state.

The new MCLs are also expected to impact the investigation as well as remediation of hazardous waste sites and Brownfield sites. The standard for 1,4 dioxane is lower than the ambient water quality standards for other common solvents observed in New York state waters (most of which are set at 5 ppb), and the standards for PFOA and PFOS are significantly lower than 1 ppb.

Thus, they are predicted to increase the scope of site remediation projects where such measures are identified as feasible and where the source is identified as existing at the hazardous waste site.

EPA’s New WOTUS Rule

By Paul M. Seby and Matthew K. Tieslau on December 13, 2018 Posted in Clean Water Act, EPA, Executive Order, Regulatory, Water, WOTUS

On Dec. 11, 2018, EPA and the U.S. Army Corps of Engineers (the Agencies) released a proposal to revise the regulatory definition of “waters of the United States” (WOTUS), as found in the federal Clean Water Act (CWA). The proposal represents another chapter in the long-running debate over the scope of federal authority.

The CWA gives the Agencies broad authority to regulate WOTUS – but does not define that term. The Agencies have adopted numerous definitions of WOTUS over the past several decades, recently adopting a rule during the Obama administration that defined WOTUS very broadly based on construing Justice Kennedy’s “significant nexus” test from his concurring opinion in Rapanos v. United States. The Obama-era WOTUS rule is currently enjoined in 22 states while litigation challenging its legality proceeds.

On Feb. 28, 2017, President Trump issued an executive order directing the Agencies to review and revise the Obama-era rule, instead adopting Justice Scalia’s narrower definition of WOTUS from the plurality opinion in Rapanos. The Agencies’ proposal this week is the latest action in response to the executive order.

The key changes to the definition of WOTUS found in the Agencies’ Dec. 11 proposal include:

Removing jurisdictional coverage of all interstate waters, instead requiring that an interstate water separately meet the definition of WOTUS under another jurisdictional category (such as being tributary to a navigable water, or being a navigable water);
Removing “ephemeral” waters features as definitional WOTUS, only including rivers and streams with yearly perennial or intermittent flow to downstream navigable waters;
Removing upland and ephemeral ditches from definitional WOTUS;
Only including lakes or ponds that are traditional navigable waters or connected to traditional navigable waters through tributaries;
Narrowing the coverage of wetlands, only including wetlands that are abutting jurisdictional waters or that have a direct hydrological surface connection to jurisdictional waters (thus removing wetlands separated by a berm, dike, or other barrier that were previously considered jurisdictional).

Otherwise, traditional navigable waters and territorial seas, impoundments, tributaries, wetlands abutting navigable waters, and ditches and lakes and ponds connected to navigable waters remain jurisdictional under the Agencies’ revised definition of WOTUS.

The Agencies claim that the new proposed WOTUS definition will bring clarity to jurisdictional determinations when compared with the Obama-era definition by creating clearly defined categories of waters considered WOTUS, eliminating the case-by-by case reliance on Justice Kennedy’s “significant nexus” test while still incorporating the important aspects of Justice Kennedy’s opinion.

The Agencies acknowledge that the new WOTUS definition narrows the scope of waters covered as jurisdictional when compared to both the Obama-era rule and the pre Obama-era WOTUS definition, but assert that the definition more closely adheres to constitutional and statutory limitations in the CWA, limiting the role of the federal government and respecting state and tribal authority over their own land and water resources.

Comments to the Agencies’ proposed rule will be due 60 days after formal publication in the Federal Register. If formally adopted, legal challenges to any final rule are expected – including seeking relief in the form of reinstatement of the 2015 Obama-era WOTUS Rule.

We are nominated for The Expert Institute’s Best Legal Blog Contest

By Greenberg Traurig on December 6, 2018 Posted in Announcements

Thank you for reading the E2Law blog.

We are pleased to announce the E2Law Blog has been selected from hundreds of potential nominees to participate in the largest competition for legal blog writing: The Expert Institute’s Best Legal Blog Competition. The competition runs until the close of voting on December 17th.

Please click the link below to vote today – and please share!

Vote for the E2Law Blog

Environmental Aspects of the United States-Mexico-Canada Commercial Agreement (USMCA)

By Erick Hernández Gallego on December 5, 2018 Posted in Environment, Federal, Federal Regulation, GT Alert, International, Mexico, Pollution, USMCA, Water

The recent United States-Mexico-Canada Agreement (USMCA), which replaces the North American Free Trade Agreement (NAFTA), claims to modernize and reinforce obligations regarding environmental matters that were previously covered in NAFTA and by the Commission for Environmental Cooperation (CEC).

This GT Alert summarizes some of the most important environmental aspects established by Chapter 24 of the USMCA and explains the scope of the new agreement’s binding obligations, which include conflict resolution through consultation and cooperation.

To read the full GT Alert, click here.