How Low Can You Go—States Continue to Lower Regulatory Bar on PFAS in Drinking Water
By Steven M. Siros
In 2016, U.S. EPA established an advisory level of 70 parts per trillion (PPT) for combined perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)-- two of the more commonly found polyfluoroalkyl substances (PFAS). However, the Agency for Toxic Substances and Disease Registry (ATSDR) recently suggested that these advisory levels may not be stringent enough, releasing draft risk values earlier in 2018 that are significantly more conservative than the values relied upon by U.S. EPA in 2016. The ATSDR draft report identifies a minimal risk level for PFOA that equates to approximately 11 ppt and approximately seven ppt for PFOS.
The ATSDR draft report, the issuance of which the White House had sought to delay, has been subject to criticism by both sides of the spectrum, with some questioning the science behind the conclusions reached in the report, while others claim that the draft report doesn’t go far enough. The public comment period on the draft report closed on August 20, 2018 and the report has yet to be finalized.
However, in lieu of waiting for the report to be finalized and/or for U.S. EPA to take further action to revise its current health advisory level, several states have elected to move forward to establish their own regulatory limits for these chemicals. New Jersey and Vermont had taken the lead in adopting more stringent regulatory standards, with New Jersey adopting a 14 ppt limit for PFOA and Vermont adopting a 20 ppt limit for combined PFAS in drinking water. However, these levels were established prior to the release of the draft ATSDR report and a number of other states have since jumped on the regulatory bandwagon. For example, New York’s Drinking Water Quality Council recently recommended that New York adopt a 10 ppt limit for PFOA and PFOS. Michigan, which had adopted U.S. EPA’s recommended advisory level of 70 ppt, also is in the process of developing more stringent standards for PFAS in drinking water.
ATSDR has yet to release a time-line for finalizing its draft toxicological profile for PFAS and although U.S. EPA has announced that it intends to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, that is several years away. In the interim, it appears likely that individual states will continue to adopt their own individual regulatory levels for these chemicals in drinking water which will continue to result in a patchwork regulatory framework across the United States.
New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants
By Gabrielle Sigel
OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.
The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f). There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical. An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.
OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:
The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
The hazard was recognized;
The hazard was causing or was likely to cause death or serious physical harm; and,
There was a feasible and useful method to correct the hazard.
The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL. The Enforcement Policy includes a sample HAL.
The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements. However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection. Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.” However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”
With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer. Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency. With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case. However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite.
The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances. The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated. (Emphases added.) In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation. The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL. FOM (8/02/2016) § III.D.2, Example 4‑25.
Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.
The Trump Administration Issues Proposed "Waters of the United States" Rule Under CWA
By Gabrielle Sigel
On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S. The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”). The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion. The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration. 80 Fed. Reg. 37054. Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule. See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.
The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.” By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.” The six categories are, in general:
Traditional Navigable Waters (“TNW”s) – large water bodies used in interstate or foreign commerce, e.g., the Mississippi River, and including territorial seas
Tributaries – rivers and streams that flow to TNWs, which flow more often than just when it rains, e.g. Rock Creek, a tributary to the Potomac River
Certain ditches – an “artificial channel used to convey water,” if they are TNWs (e.g. the Erie Canal), are subject to tides, or are constructed in a tributary or in an adjacent wetlands
Certain lakes and ponds – TNWs; water bodies that contribute by perennial or intermittent flow downstream to TNWs; or are flooded by another WOTUS
Impoundments – impoundments of otherwise defined WOTUS
Adjacent wetlands – wetlands that physically touch other WOTUS; wetlands with a surface water connection in a typical year from inundation or perennial or intermittent flow; wetlands that are near a WOTUS but not physically touching due to a physical barrier if they are flooded or otherwise reconnected over the surface of the physical barrier
See the exact language of the six categories in the Proposed WOTUS Rule here.
The Proposed WOTUS Rule also specifies waters that would not be considered WOTUS, including features that contain water only in response to rain; groundwater; most farm and roadside ditches; and stormwater control features.
The Administration states that the new rule would eliminate the “time-consuming and uncertain process of determining whether a ‘significant nexus’ exists between a water and a downstream [TNW],” which has occurred since Justice Kennedy’s Rapanos opinion using the “significant nexus” language. The Administration also notes that the new rule, when final, would narrow the scope of WOTUS by eliminating some “ephemeral” streams and all such ditches. In addition, certain non-navigable lakes and ponds and other wetlands would no longer be regulated under the CWA. Perhaps the most dramatic change would be in the scope of wetlands which, if physically separated, would require a direct hydrologic surface connection to an otherwise recognized jurisdictional waters to be included within CWA jurisdiction.
Any new WOTUS rule, like its predecessors, will be subject to extensive litigation and further interpretation. The Administrator’s focus on surface bodies is likely to be a prime basis for substantively contesting the rule.
The Proposed WOTUS Rule is subject to written public comment, during a 60-day period after the Proposed Rule is formally published in the Federal Register. Comments can be submitted electronically at Docket ID No. EPA-HQ-ow-2018-0149.
Matthew Lawson to Present at the Chicago Bar Association on the Environmental Impacts of Blockchain
By Allison A. Torrence
On Thursday, November 29th, Jenner & Block Associate Matthew Lawson will be giving a CLE presentation on the “Environmental Impact of Blockchain” at the Chicago Bar Association’s Young Lawyers Environmental Law Committee Meeting. Matthew Lawson’s presentation will discuss both the negative environmental impacts caused by the growth in popularity of cryptocurrency mining, and the potential positive impacts on the environment from emerging and future applications of the Blockchain technology.
The presentation is on November 29, 2018, from 12:15 PM - 1:30 PM at the Chicago Bar Association, 321 S. Plymouth Ct. Chicago, IL 60604.
For more information on the event click here.
ATSDR and U.S. EPA--Conflicting Guidance Regarding Emerging Contaminant Regulatory Standards?
By Steven M. Siros
The director of the Agency for Toxic Substances and Disease Registry (ATSDR), Peter Breysse, continues to defend his agency's minimal risk levels (MRLs) for perfluorinated chemicals that were released in June 2018 as part of a draft toxicological profile. In response to questions posed at a recent Senate hearing, Breysse noted that ATSDR’s draft MRLs roughly corresponded to drinking water levels of 14 parts per trillion (ppt) for perfluorooctane sulfonate (PFOS) and 21 ppt for perfluorooctanoic acid (PFOA). Where these levels are exceeded, ATSDR has recommended that residents take steps to lower their exposures and contact state and local authorities. Breysse also recommended that residents consult with physicians and noted that ATSDR has information on its website for physicians to consult regarding exposure risks for these chemicals.
The drinking water levels referenced in the ATSDR toxicological profile (14 ppt for PFOS and 21 ppt for PFOA) correspond generally with regulatory standards implemented in several states, including New Jersey and Vermont, both of which have the lowest regulatory levels for these compounds in the United States. However, the ATSDR MRLs are much stricter than U. S. EPA’s drinking water advisory level of 70 ppt. In addition, many news outlets reported that U.S. EPA had sought to delay ATSDR’s issuance of its June 2018 toxicological profile. Perhaps coincidentally, at about the same time as ATSDR issued its draft report, U.S. EPA announced plans to begin to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS.
Although ATSDR and U.S. EPA continue to work cooperatively (at least on paper) to address PFOA and PFOS at contaminated properties throughout the United States, it remains to be seen how well these agencies will cooperate in setting an MCL for these contaminants. The agencies' "cooperative" relationship may face choppy waters, especially in light of ATSDR's continued defense of its MRLs and U.S. EPA's skeptical view regarding same.
In Midterm Elections, Colorado Voters Reject High Profile Anti-Fracking Initiative
By Matthew G. Lawson
On Tuesday, November 6th, Colorado voters rejected a highly contested ballot initiative which would have set unprecedented limits on oil and gas drilling in the state. The measure, Proposition 112, would have prohibited drilling new oil or natural gas wells within 2,500 feet of certain occupied buildings—including homes, schools and hospitals; various water sources—including lakes, rivers and creeks; and other areas specifically designated as “vulnerable” by the state. In total, a report from the Colorado Oil & Gas Conservation Commission estimated that the measure would have prohibited new hydraulic fracturing operations on as much as 95% of the land in Colorado’s top oil and gas producing counties.
The proposition received a high degree of pre-election attention, with individuals from politician Bernie Sanders to actor Leonardo DiCaprio encouraging Colorado voters to support the initiative. While early polling indicated Proposition 112 was supported by the majority of Colorado voters, the initiative was ultimately defeated with 57% of the state’s voters opposing it in Tuesday’s elections. In what may have served as a fatal blow, Colorado’s governor-elect, Jared Polis, distanced himself from the ballot initiative in the days leading up to the election. The newly elected Democrat had campaigned as a pro-environment alternative to his Republican opponent, but categorized the ballot initiative as “economically damaging” to the state of Colorado.
At present, New York, Vermont, and Maryland are the only states to have established outright bans on fracking. None of those states, however, has oil and gas reserves approaching the production capacity of Colorado. The state’s oil and gas industry has grown dramatically in the last decade, with the state’s production of crude oil rising from 73,000 barrels per day in 2008 to 477,000 barrels per day in August 2018. As the state’s production of oil and gas continues to grow, it appears likely that legislative battles over fracking regulations will continue to unfold.
New Jersey Federal District Court Dismisses Enviro’s Constitutional Challenges to FERC’s Approval of PennEast’s $1B Gas Pipeline, Holding that the Court Doesn’t Have Jurisdiction under the Natural Gas Act
By: Alexander J. Bandza
On Monday, in N.J. Conservation Found. v. FERC (No. 17-11991), the U.S. District Court for the District of New Jersey dismissed the New Jersey Conservation Foundation’s (“NJCF”) suit against the Federal Energy Regulatory Commission (“FERC”) because the Court found that the courts of appeals, and not it, had subject matter jurisdiction under the Natural Gas Act (“NGA”). NJCF’s suit sought to declare that FERC’s practice of issuing certificates authorizing the construction of natural gas pipeline facilities violated the U.S. Constitution. While pled solely against FERC and its Commissioners, the case was predicated on FERC’s prior approval of PennEast Pipeline Company, LLC’s (“PennEast”) right to construct a $1B interstate natural gas pipeline. NJCF’s case centered on three purported Constitutional issues with FERC’s environmental analysis: (1) FERC’s approvals that delegate the power of eminent domain in the absence of adequate public use analyses violate the Takings Clause; (2) FERC’s approvals that grant eminent domain prior to receiving environmental impact findings from regulatory agencies violate the Fifth Amendment; and (3) FERC’s approvals that provide for subsequent state or federal authorizations, which then may require changes to the pipeline route or prevent construction, also violate the Takings Clause. The Court granted FERC’s motion to dismiss, holding that the Court did not have subject matter jurisdiction because the NGA vested the courts of appeals, not district courts, with exclusive jurisdiction to hear NJCF’s claims. NJCF is another voice in a growing chorus of district court and appellate cases that have rejected dissatisfied parties’ collateral attempts to re-litigate FERC’s decisions and decision-making processes, especially with regard to environmental issues, outside of FERC.
The FERC Proceedings
In September 2015, PennEast submitted an application under the NGA to construct and operate an interstate natural gas pipeline from Pennsylvania to New Jersey. Numerous parties, including NJCF, intervened in that FERC proceeding and submitted comments to FERC. FERC’s Office of Energy Projects (“Office”) initiated an environmental review process under the National Environmental Policy Act to study the pipeline’s potential environmental impacts. The Office concluded that the pipeline would result in some adverse effects, but they would be reduced to “less than significant levels” with certain mitigation measures. The Office recommended that FERC’s final authorization, if any, should include these mitigation measures.
On January 19, 2018, FERC issued its Certificate Order of “public convenience and necessity” adopting the Office’s findings. FERC then granted a Certificate to PennEast, subject to compliance with environmental and operating conditions. Numerous parties, including NJCF, filed requests for rehearing and moved to stay the Certificate Order. FERC ultimately issued a final order denying rehearing. NJCF and others sought review of FERC’s PennEast orders in the D.C. Circuit in addition to instant matter, which contained Constitutional claims and was filed in the New Jersey District Court.
The New Jersey District Court’s Opinion
FERC moved to dismiss NJCF’s complaint for lack of subject matter jurisdiction, arguing that the New Jersey District Court lacked jurisdiction to hear NJCF’s claims because the NGA vests the courts of appeals with exclusive jurisdiction to hear matters relating to a pipeline certificate proceeding. The Court agreed and dismissed NJCF’s complaint, holding that the “weight of the authorities” is that the NGA explicitly precluded the Court’s review of NJCF’s Constitutional claims.
According to the Court, the NGA confers on FERC “exclusive jurisdiction” over the “transportation and sale of natural gas in interstate commerce.” Op. at 2. Another section of the NGA provides that once a party requests rehearing of a FERC order, a party aggrieved by that particular order may seek judicial review in a court of appeals. Id. at 3. NJCF argued that the NGA’s statutory language limiting the avenues of review did not apply here because its case instead challenged “FERC’s general pattern and practice of granting unconstitutional certificates.” Indeed, the Court recognized that NJCF “painstakingly characterize[d] its claims as constitutional in nature . . . — whether a conditional certificate, issued by FERC, that is not sufficient to authorize pipeline construction may constitutionally permit a private company to condemn land for a pipeline that may never be built.”
Despite NJCF’s artful pleading, the Court surveyed the substantial number of decisions holding that because the NGA’s exclusive jurisdiction provision is so broad in scope, the NGA is the “exclusive remedy for matters relating to the construction of interstate natural gas pipelines.” Id. at 7-18. The Court had no shortage of colorful language from the collection of “well-settled” authorities in support of its holding: Third and Fourth Circuits—“there is no area of review, whether relating to final or preliminary orders, available in the district court”; Sixth Circuit—“exclusive means exclusive”; Tenth Circuit—it “would be hard pressed to formulate a [statutory framework] with a more expansive scope”; and First Circuit (although under the Federal Power Act’s similar provision)—challenges brought in the district court outside that scheme are “impermissible collateral attacks.” As a result, according to the Court, NJCF “cannot escape the NGA’s statutory scheme of review by circumventing [its] plain language.”
The Court’s opinion is available here.
The United States’ Largest Wholesale Energy Provider Launches Blockchain-Based Pilot for Renewable Energy Markets
By Matthew G. Lawson
On April 18, 2018, the Corporate Environmental Lawyer published a blog entry discussing the growing use of Blockchain technology by startup companies seeking to connect populations without access to traditional electricity markets to electricity produced by distributed renewable energy systems. As discussed in that blog entry, proponents of Blockchain technology have asserted the platform’s built-in efficiencies would allow it to compete with traditional, utility-owned electrical grids, with one company going as far as setting up a “micro-grid” in Brooklyn, New York. It appears that the marriage between Blockchain and the electricity grid may be moving forward at an accelerated pace as the technology is now being examined and piloted by major utility operators.
PJM Interconnection (“PJM”), the United States’ largest power grid operator and market administrator serving over 65 million people from Chicago to Washington D.C., has announced its intention to test a Blockchain system that will allow clean-energy buyers and sellers to trade the renewable energy credits that wind and solar farms produce as they generate electricity. Working through its subsidiary—PJM Environmental Information Services—PJM has announced a partnership with Energy Web Foundation, a nonprofit entity with experience developing Blockchain platforms for smaller energy markets in Europe and Asia. The partnership hopes to rollout a pilot for the program by the end of the first quarter of 2018. “This collaboration between EWF and PJM-EIS is a major milestone for the adoption of advanced digital technologies in the energy sector,” said Hervé Touati, CEO of Energy Web Foundation. “We are excited to partner with a leader such as PJM-EIS.”
Blockchain, the technology that functions as a public ledger underpinning digital currency transactions, continues to be promoted as a key driver of growing renewable energy markets. At its core, the belief that Blockchain can spur renewable energy growth and disrupt current energy markets stems from the potential built-in efficiencies of the technology, which allow buyers and sellers of clean power to interact directly, without the need for a central coordinator. While the potential impact of Blockchain on future energy markets is still unknown, the successful use of the technology by PJM could represent a major milestone in the growth and development of the technology in the marketplace.
New Law Requires Widespread Testing for Unregulated Contaminants
By Steven M. Siros
On October 23, 2018, President Trump signed into law America’s Water Infrastructure Act of 2018 which, in addition to authorizing federal funding for water infrastructure projects, also requires drinking water systems serving more than 3,300 people to test for unregulated contaminants pursuant to U.S. EPA’s Unregulated Contaminants Monitoring Rule (UCMR). Prior to this new law, only drinking water systems that served more than 10,000 people were required to monitor for unregulated contaminants. Contaminants covered by the UCMR include PFOA, PFOS, 1,2,3-TCP, hexavalent chromium and 1,4-dioxane. This new testing requirement, which goes into effect in 2021, is expected to add more than 5,000 drinking water systems to the list of systems that are required to test for these unregulated contaminants.
The challenge that continues to be faced by drinking water systems across the country is what to do if these contaminants are in fact found in the drinking water supply. As their name would imply, U.S. EPA has yet to set drinking standards for these contaminants although many states and local entities continue to enact a patchwork of regulatory requirements often without regard to the technical feasibility of treating these chemicals and/or the health risks actually posed by these chemicals. Unfortunately, until such time as U.S. EPA takes action to enact a federal standard, the regulated community will continue to be subject to this regulatory quagmire and now, with the new testing requirements, more drinking water systems will be forced to struggle with this issue without any clear regulatory guidance.
Supreme Court to Hear Dispute Over the United States’ Largest Uranium Deposit
By Matthew G. Lawson
On November 5, 2018, the United States Supreme Court will hear oral arguments on a landmark case regarding the preemptive effect of the Atomic Energy Act of 1954 (the “Atomic Energy Act”) on a state’s regulation of uranium mining. The case, Virginia Uranium Inc. v. Warren, questions whether the Atomic Energy Act’s regulation of radiation safety standards extends to preempt a Virginia state law banning uranium mining within the borders of the state. The Virginia law dates back to the early 1980s, after the largest uranium deposit in the United States was discovered in Pittsylvania County, Virginia. In response to the discovery, the Virginia General Assembly asked the state’s Coal and Energy Commission to evaluate the potential safety effects of uranium mining, and enacted an indefinite ban on mining the deposit. The unharvested deposit is valued at up to $6 billion USD.
In 2007, the owners of the land, Virginia Uranium Inc., Cole Hill LLC and Bowen Minerals LLC, announced their intention to begin mining the deposit. After failing to convince the Virginia legislature to overturn its mining ban, the plaintiffs sought to challenge Virginia’s law as preempted under the Atomic Energy Act.
The Atomic Energy Act gives the federal Nuclear Regulatory Commission the sole power to regulate several steps in the production of nuclear fuel, including setting radiation safety standards for milling uranium ore and disposing of uranium waste byproducts. The Atomic Energy Act does not, however, directly regulate the mining of uranium on non-federal land.
According to the Plaintiffs/Petitioners, the Virginia ban is preempted by the Atomic Energy Act because the purpose and direct effect of Virginia’s law is to regulate radiation safety standards, which the Atomic Energy Act exclusively entrusted to the purview of the Nuclear Regulatory Commission. Predictably, the Virginia legislature has taken a much less expansive view of the law, arguing that the Atomic Energy Act only regulates uranium “after [uranium’s] removal from its place of deposit in nature.” Thus, according to the legislature, a state is free to regulate—or ban—the harvesting of uranium prior to its removal from the deposit.
The eventual resolution of the dispute will not only have a significant impact on the availability of American mined uranium, but may also potentially set the stage for the broader battle over states' rights brewing between the Trump administration and liberal states like California, which have looked to enact environmental laws in areas currently regulated by the federal government.
Trump Administration Releases Fall 2018 Regulatory Agenda
By Allison A. Torrence
The Trump Administration has released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. This regulatory agenda “reports on the actions administrative agencies plan to issue in the near and long term [and] demonstrates this Administration’s ongoing commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.”
According to the Trump Administration, the regulatory agenda reflects the following broad regulatory reform priorities:
Advancing Regulatory Reform
Public Notice of Regulatory Development
Consistent Practice across the Federal Government
The EPA-specific regulatory agenda lists 148 regulatory actions in either the proposed rule stage or final rule stage, and provides information about the planned regulatory actions and the timing of those actions. Notable regulatory actions under consideration by EPA include:
More information, and EPA's Statement of Priorities, can be found here.
EPA To Begin Superfund Adaptive Management Pilot Program
By Allison A. Torrence
Under the Trump Administration, EPA has expressed a renewed focus on the Superfund program and making sure that site cleanups operate optimally. In 2017, EPA established a Superfund Task Force, “to provide recommendations for improving and expediting site cleanups and promoting redevelopment.” The Superfund Task Force has made a number of recommendations, including recommending that EPA “Promote the Application of Adaptive Management at Complex Sites” and “Broaden the Use of Adaptive Management (AM) at Superfund Sites.”
According to the Superfund Task Force,
Adaptive Management is an approach used at large and/or complex sites that focuses limited resources on making informed decisions throughout the remedial process…Under an Adaptive Management strategy, Regions are encouraged to consider greater use of early and/or interim actions including use of removal authority or interim remedies, to address immediate risks, prevent source migration, and to return portions of sites to use pending more detailed evaluations on other parts of sites.
To implement the Superfund Task Force recommendations, EPA has issued a pre-decisional draft plan that describes how it will implement an Adaptive Management Pilot Program at selected Superfund sites across the country.
EPA believes that Adaptive Management will streamline decision making, facilitate site progress, and help control costs. Key elements of EPA’s Adaptive Management plans include:
Define Site/Project Objectives
Model(s) the site being managed
Identify potential actions
Monitor and evaluate outcomes
Incorporate learning into future decisions
EPA presented information about the Adaptive Management Pilot Program in an October 2018 webinar. Comments on the Adaptive Management Pilot Program are due October 9, 2018. Later in October 2018, EPA Regions will nominate sites to participate in the pilot programs, and EPA anticipates selecting pilots by November 2018.
EPA Finalizes TSCA Fees Rule; Estimates Chemical Manufactures to Pay $20 Million Annually in Fees
By Allison A. Torrence
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (a/k/a the TSCA Reform Act), signed into law in 2016, was a major overhaul of the 40-year-old chemical law, reforming how new and existing chemicals are evaluated and deemed “safe.” Since the law’s passage, EPA has completed determinations on 1,602 new chemical cases. EPA has also taken action to ban or restrict use of five existing chemicals, including trichloroethylene (TCE) and methylene chloride, which EPA found to pose heightened risks.
EPA has expended considerable resources over the past two year to fulfil these new review and evaluation requirements. EPA has now taken action to pass some of those costs down to the chemical industry in the form of fees authorized by the TSCA Reform Act.
On September 27, 2018, Acting EPA Administrator Wheeler signed the final Fees Rule, setting out the fees EPA will impose on industry to pay for the costly TSCA review process. The final rule will become effective one day after publication in the Federal Register, which is expected to happen in the next few days.
Under the Fees Rule, affected businesses will begin incurring fees on October 1, 2018. The Fees Rule requires payment from manufactures when they take the following actions:
Submit test data for EPA review
Submit a pre-manufacture notice for a new chemicals or a notice of new use
Manufacture or process a chemical substance that is the subject of a risk evaluation
Request that EPA conduct a chemical risk evaluation
According to EPA, the Fees Rule will impact primarily the following industries:
Chemical Manufacturers (NAICS code 325)
Petroleum and Coal Products (NAICS code 324)
Chemical, Petroleum and Merchant Wholesalers (NAICS code 424)
EPA estimates that the annualized fees collected from industry under the Fees Rule will be approximately $20 million, excluding fees collected for manufacturer-requested risk evaluations (which will be approximately $4.2 million). As required by the TSCA Reform Act, EPA will evaluate and readjust, if necessary, the fees every three years.
The Fees Rule will be found at 40 CFR chapter I, subchapter R (Parts 700-791).
More information and a list of FAQs is available at the EPA’s website.
EPA Finalizes Unprecedented NPL Listing
By Matthew G. Lawson
On September 13, 2018, the United States Environmental Protection Agency (“EPA”) took the final, unprecedented step of adding a contaminated site to the Superfund National Priorities List (“NPL”) based solely on the risk to human health posed by indoor air vapor intrusion at the site. The newly designated site, which consists of the former Rockwell International Wheel & Trim facility and its surrounding 76 acres (the “Site”), is located in Grenada, Mississippi. The Site has an extensive history. Beginning in 1966, the Rockwell facility operated as a wheel cover manufacturing and chrome plating plant. After chrome plating operations ceased in 2001, the facility was used for metal stamping until approximately 2007. According to EPA, the Site’s historic operations resulted in multiple releases of trichloroethene, toluene, and hexavalent chromium into the surrounding soil and adjacent wetland. However, EPA’s primary concern—and reason for listing the site—is the potential for airborne volatile organic compounds (“VOCs”) to enter the facility through cracks, joints, and other openings, resulting in contaminated indoor air. The potential for indoor air contamination appears to be of particular concern to EPA, given that nearly 400 individuals currently work within the facility.
The Site will now join a list of approximately 160 contaminated sites that have been federally designated as NPL sites. The NPL includes the nation’s most contaminated and/or dangerous hazardous waste sites. A contaminated site must be added to the NPL to become eligible for federal funding for permanent cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act. While EPA’s decision to list the Site based on risks from indoor air contamination is unprecedented, the move is not all together surprising, given EPA’s recent rulemaking actions. In May 2017, EPA passed a final rule expanding the list of factors the agency is allowed to consider when designating NPL sites to specifically include risks to human health from impacted indoor air. In the preamble to the rule, EPA noted that it needed the authority to list sites on the basis of significant risk to human health from vapor intrusion contamination.
In contrast to EPA’s position, environmental consultants operating at the Site have strongly opposed the NPL designation. Several of the firms submitted comments on the final listing, asserting that EPA’s risk evaluation failed to take into account the Sub Slab Depressurization System (“SSDS”) installed at the facility in 2017, which subsequently reduced levels of VOCs in the indoor air to safe levels. However, EPA rejected these arguments, noting that even though the SSDS may protect workers from immediate threats, “it is not intended to address possible long-term remedial goals such as addressing the sources of the contamination below the building.”
EPA’s designation of the Site should alert potentially responsible parties that vapor intrusion issues may result in an increased chance of a site becoming listed on the NPL. In addition, parties relying on engineering controls to maintain compliant indoor air vapor levels should note the potential for EPA to deem such actions insufficient as long-term site remedies.
United Airlines Steps Up to Cut Greenhouse Gases
By Steven M. Siros
United Airlines became the first U.S. airline to publicly commit to reducing its greenhouse gas emissions (GHG) by 50% by 2050. In a press release issued on September 13, 2018, United Airlines explained that it would achieve that reduction by expanding its use of more sustainable biofuels and by relying on more fuel-efficient aircraft and implementing other operational changes to better conserve fuel. United Airlines' commitment to reduce GHG emissions by 50% by 2020 is consistent with reduction targets established by the International Air Transport Association in May 2018.
U.S. EPA has yet to regulate GHG emissions from aircraft in the United States, notwithstanding U.S. EPA’s July 25, 2016 endangerment finding for GHG emissions from aircraft and U.S. EPA’s Advanced Notice of Proposed Rulemaking contemplating adoption of the International Civil Aviation Organization’s (ICAO) aviation carbon emission design standards.
The decision by United Airlines is likely to be followed by other U.S. carriers that have international routes because those carriers will be subject to the ICAO standards when flying internationally.