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March 23, 2020 Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing?

Bandza Linkedin_Steven_Siros_3130 SigelBy: Alexander J. Bandza, Steven M. Siros, and Gabrielle Sigel

DigAs the United States rapidly transitions to working from home (when possible) companies involved in environmental investigations or remediation work must determine whether such field or other work could, should, or must continue in the days, weeks, and months ahead. The world is pivoting to tackle COVID-19, a public health crisis, and many of the “essential services” exempted from stay-at-home/shelter-in-place orders (“Restriction Orders”) include work involving public health and safety, as well as critical infrastructure services. Therefore, any person with ongoing environmental investigation and remediation work (“environmental field work”) has to consider whether that work would be or should be included in the category of “essential services.”

From a policy standpoint, whether environmental field work should be considered “essential” requires an evaluation of the people and the environment potentially put at risk, the likelihood of that risk, and the resources the work uses. Continuation of environmental field work may benefit public health and the environment, but it also is occurring at some cost to public health and safety. For example, environmental projects use personal protective equipment (“PPE”) and laboratory equipment and personnel that may be able to be allocated to medical and other scientific research needs. Furthermore, some environmental field work requires close human contact and, at a minimum, will require travel to work and other activities that the Restriction Orders and federal and CDC guidelines are seeking to avoid. In addition, environmental contractors may not be able to perform work if key personnel are not available to work due to travel restrictions, health impacts, or family obligations. Thus, the consideration of whether environmental field work should continue during the COVID-19 crisis requires weighing complex public health and safety needs and risks.

To help those considering whether and how to continue environmental field work, evaluate the following:

(1)     Am I allowed to do the environmental field work under a state or local COVID-19 Restriction Order?

(2)     If I cannot continue under a Restriction Order or for other reasons, how do I protect my company’s interests to avoid penalties and other liabilities under the consent decrees, administrative orders, or various other agreements with or regulations imposed by state and federal environmental agencies; and

(3)     If I am allowed to or required to continue the work, what regulations pertain to how to do the work safely?

1.    AM I ALLOWED TO DO THE WORK UNDER A RESTRICTION ORDER?

As of the time of publication of this alert, there are no federal mandates or executive orders requiring business shutdowns or mandatory quarantines. However, many states, counties, and municipalities are issuing executive orders closing non-essential businesses and limiting gatherings of people.

    a.    State-Level COVID-19 Executive Orders

Each of these state and local mandates exempt “essential businesses” and the specific definition of an essential business varies from state to state. As a general rule, however, “essential businesses” are those that promote public safety, health, and welfare. Here are examples of several of the first state directives.    

California: On March 19, 2020, Governor Newsom issued Executive Order N-33-20 requiring California residents to remain at home unless they are involved in 16 critical infrastructure sectors. These 16 critical infrastructure sectors were designated by the Department of Homeland Security and include the water and wastewater systems sector that is responsible for ensuring the supply of safe drinking water and wastewater treatment and service.  

Illinois: On March 20, 2020, Governor Pritzker issued Executive Order 2020-10 requiring Illinois residents to remain in their homes to prevent the spread of COVID-19. The order specifically exempts “essential government functions”, “essential businesses and operations”, and “essential infrastructure activities.” Essential infrastructure activities include operation and maintenance of utilities, including water, sewer, and gas, and solid waste and recycling collection and removal and essential businesses and operations includes construction related activities.

New York: On March 20, 2020, Governor Cuomo issued an Executive Order (referred to as Pause, standing for Policies Assure Uniform Safety for Everyone), requiring that as of 8 p.m. on March 22, all non-essential businesses must ensure that their workforce works remotely. Exempt “Essential businesses” include essential infrastructure (including utilities and construction); essential services (including trash collection, mail, and shipping services; news media; banks and related financial institutions); sanitation and essential operations of residences or other essential businesses; and vendors that provide essential services or products (including services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public).

New Jersey: On March 21, 2020, Governor Murphy issued Executive Order 107 requiring that New Jersey residents remain in their homes and requiring that all “non-essential businesses” close. A previously issued executive order (Executive Order No. 104) defined “essential businesses” to include “grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.” All gatherings within the state are limited to 50 persons or fewer, except for “normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods.”

In addition to these states, many other states have either implemented similar orders (including Connecticut, Delaware, and Louisiana) or likely will do so in the coming weeks. While expressly mentioning critical sectors such as health care, police and fire, and grocery stores, the orders do not squarely address whether environmental field work constitutes “essential businesses” subject to these exemptions. However, environmental field work logically could be included under the categories used to describe “essential business,” particularly because many of the environmental statutes requiring such work expressly state that the work is being ordered or conducted to protect human health and the environment.

    b.    Federal (U.S. EPA) Environmental Agency Guidance

The White House has issued Coronavirus Response Guidelines, “15 Days to Slow the Spread,” including a statement that if you work in one of the 16 “critical infrastructure industries” as defined by the Department of Homeland Security, you have a “special responsibility” to continue to work.

As of this publication, U.S. EPA has not released public guidance on whether ongoing or new site cleanups and/or site investigations would constitute “critical infrastructure industry.” At least to some degree, that determination is likely to be a site-specific, based on the unique circumstances of each site and, as further discussed below, the language of the agency orders or agreements which govern the environmental field work. It is likely that in the coming weeks, U.S. EPA will provide further guidance on assessing whether site cleanup activities constitute “critical infrastructure industry” exempt from the various Restriction Orders. One issue that may need to be resolved in the future relates to potential conflicts in federal and state guidance regarding what constitutes an “essential service.” Such issues could be addressed via federal and state cooperation agreements in the event of possible conflicts between federal and state directives.

    c.    State Environmental Agency Guidance

At least one state environmental regulatory agency has provided guidance directly on this issue. On March 20, 2020, the California State Resources Water Control Board, which generally has jurisdiction over impacted groundwater in California, published a Guidance Document that states:

Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.   

It is likely that similar guidance will be issued in the coming weeks by other state regulatory agencies.

2.    IF I CANNOT CONTINUE THE WORK UNDER A RESTRICTION ORDER OR OTHERWISE, HOW COULD I PROTECT MY COMPANY’S INTERESTS TO AVOID PENALTIES OR OTHER LIABILITIES?

Those responsible for ongoing environmental field work should carefully evaluate the governing consent decrees, administrative orders, or other agreements with state and federal environmental agencies, and private parties, under which they are performing environmental field work. The agreements may well have force majeure and other clauses addressing delays in the work.

For example, under the current federal model remedial design/remedial action (RD/RA) judicial consent decrees with potentially responsible parties (“PRPs”) under sections 106, 107 and 122 of CERCLA, PRPs have both covenanted not to sue the United States and agreed to indemnify the same for “claims on account of construction delays.” There are additional stipulated penalty provisions. Therefore, companies must act pursuant to the force majeure provisions to avoid these claims and stipulated penalties. Force majeure is defined as “any event arising from causes beyond the control of [PRPs], of any entity controlled by [PRPs], or of [PRPs]’ contractors that delays or prevents the performance of any obligation under this [consent decree] despite [PRPs]’ best efforts to fulfill the obligation.”

Relying on these provisions involves:

  • Notifying “EPA’s Project Coordinator orally or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s designated representatives are unavailable, the Director of the Waste Management Division” in that specific U.S. EPA Region within a stipulated period of days (the period of days may vary under each consent decree).
  • Providing in writing to U.S. EPA “an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; [the PRP’s] rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of [the PRP], such event may cause or contribute to an endangerment to public health or welfare, or the environment” within a stipulated period of days (the period of days likely varies under each consent decree).
  • Providing with the above writing “all available documentation supporting their claim that the delay was attributable to a force majeure.”

U.S. EPA is then to provide notice of its decision, which if U.S. EPA rejects the force majeure claim, the responsible parties must provide notice within 15 days of U.S. EPA’s decision to avail themselves of the model consent decree’s dispute resolution provision. The federal Model Administrative Settlement Agreement and Order on Consent for Removal Actions contains similar obligations and provisions.

It is thus plain that responsible parties conducting environmental field work should be prepared to contact U.S. EPA or state regulators orally as soon as practicable to determine their views on the necessity of the work and if there is disagreement about the same, begin to “paper the file” on the necessary force majeure documentation in the time frames provided in the governing consent decrees, administrative orders, or various other agreements with state and federal environmental agencies.

For sites that are in the early investigation stages, regulators may agree to a temporary pause in site investigations. For sites that are currently undergoing remedial measures, the determination on whether work should continue is again likely to be fact dependent. For example, a site with an ongoing groundwater treatment system that is being operated to protect a drinking water source is likely to be deemed an essential activity. For a site where the remedial measures involve excavating impacted soils that are not immediately affecting groundwater sources, it may be the case that the regulators determine that certain activities are not “essential” and can be temporarily paused or scaled back.

Even if the decision is made to proceed with the work, other circumstances may preclude or significantly impair the ability to do the work. For example, it may be difficult to obtain necessary supplies and/or vendors to perform these services. To the extent that wastes are generated in the course of doing this work, can these wastes be managed and disposed of in a timely manner? These are all issues that should be discussed with the regulators or private parties requiring the work.

3.    IF I CONTINUE THE WORK, HOW CAN I DO IT SAFELY?

Once a decision is made that environmental field work is “essential” and must proceed to at least some degree, special care must be taken to ensure that the work is performed safely given additional risks imposed by COVID-19.  On March 9, 2020, the federal Occupational Safety and Health Administration (“OSHA”) issued its Guidance on Preparing Workplaces for COVID-19 that was the subject of a previous client alert.  This OSHA guidance outlines recommended steps that employers should take to protect workers, using OSHA’s “hierarchy of controls” framework for addressing workplace risks (i.e., engineering controls, followed by administrative controls, safe work practices, and PPE.  It is also prudent for all entities at the site to consider what steps they will take if they learn that one of the workers has become exposed to the novel coronavirus or contracted COVID-19. On March 20, 2020, the CDC issued updated “Environmental Cleaning and Disinfection Recommendations.” 

OSHA has long-standing regulations for work at hazardous waste sites under its Hazardous Waste Operations and Emergency Response (“HAZWOPER”) standard (in general industry 29 CFR 1910.120 and in construction 29 CFR 1926.65), which establishes health and safety requirements for work at sites, as well as responses to emergencies involving releases of hazardous substances. Many environmental investigation and remediation sites have rigorous site-specific health and safety plans, and many are required to have such plans by a consent decree or other regulatory or contractual obligation. Many environmental contractors have such plans as part of their standard operating procedures. However, given COVID-19, special care should be taken to ensure that PPE that would ordinarily be used to prevent exposure to hazardous substances is not contaminated prior to being utilized in the field.  Moreover, ensuring feasible physical distancing, requiring diligent hygiene methods, and having appropriate cleaning equipment and chemicals in the field are also critical.  All entities with employees at the site should regularly check both the OSHA and CDC website for updated guidance on workplace health and safety best practices. It also is important to ensure that the protocols are being appropriately communicated and followed by all entities (including regulators) at a site; the best protocols and procedures are only as good as their actual implementation by all.

OSHA has reminded the regulated community that if employees contract COVID-19 as a result of performing their work-related duties, the employees who become ill could constitute recordable cases of illness under OSHA’s Injury and Illness Recordkeeping Standard, 29 CFR Part 1904.

Companies and their counsel also should evaluate existing master services agreements that govern the work of their vendors and contractors with a particular eye towards: (i) how indemnification provisions might apply in the event that a vendor’s or contractor’s employee is later determined to be infected with COVID-19 and such a latency period could plausibly extend to such an employee’s work at the company’s site and its employees, and vice versa; and (ii) payment delay provisions should the company or its vendors or contractors become concerned about solvency issues.

We will continue to provide updates on the impacts of COVID-19 on environmental, health and safety issues affecting our clients. Jenner & Block has established a COVID-19 resource center that provides updates on a variety of issues affecting our clients and we would encourage you to visit this resource center for timely updates on COVID-19 related issues.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Hazmat, OSHA, Sustainability

PEOPLE: Steven M. Siros, Gabrielle Sigel, Alexander J. Bandza

February 11, 2020 White House Promises to Use “All Available Tools” to Implement Deep Cuts to EPA Funding in Fiscal Year 2021

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By Matthew G. Lawson

Epa On Monday, February 10, 2020, the Trump Administration released its proposed budget for Fiscal Year 2021. The proposal calls for sweeping cuts to a number of federal agencies and departments, including deep cuts to the United States Environmental Protection Agency (“USEPA”). If enacted, the proposed budget would grant $6.7 billion in funding to USEPA, a $2.4 billion or 26-percent reduction from the agency’s $9.1 billion budget in 2020. In the budget proposal’s preamble, the Administration promises to “call[] on the Government to reduce wasteful, unnecessary spending, and to fix mismanagement and redundancy across agencies.”

With respect to USEPA’s budget allocation, the proposal promises to “eliminate almost 50 wasteful programs that are outside of EPA’s core mission or duplicative of other efforts, saving taxpayers over $600 million.” Proposed major cuts include the reduction of nearly 50% of the agency’s research budget, including all funding for grants to independent universities and research institutes conducting air, water, and other environmental and health research. Another target for deep cuts is USEPA’s safe drinking water revolving funds. The revolving funds are used to help fund water infrastructure projects undertaken by state or municipal public water providers. Under the proposed budget, the available funds for such projects would be cut from approximately $2.77 billion down to $2 billion.

While the proposal primarily focuses on proposing cuts to USEPA’s fiscal budget, it does contain a few line item requests for additional funding. In particular, the proposal asks for an additional $6 million to carry out USEPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. The additional funding is sought to continue research into the risk posed by PFAS compounds, address current contamination issues, and effectively communicate findings to the public. In addition, the budget requests $16 million into new research to help prevent and respond to the rising growth of harmful algal blooms. 

The budget proposal is not the first time the Trump Administration has sought to implement deep cuts into USEPA’s budget. In fact, the Trump Administration has now proposed nearly identical cuts to the agency’s budget in each of the last three fiscal years. As previously discussed by the Corporate Environmental Lawyer, the Trump Administration first proposed a $2.7 billion budget reduction for USEPA in fiscal year 2018. However, the proposal was rebuffed by congress and the final spending bill ultimately signed by Trump held the agency’s budget at $8.1 billion, even with its 2017 level. The following year, the Trump Administration again proposed cutting the agency’s budget by more than $2 billion, but ultimately agreed to a spending deal that increased the agency’s budget to $8.8 billion. Finally, during fiscal year 2020, the Trump Administration proposed approximately $2.7 billion in cuts to USEPA’s budget. As before, Congress rejected the proposal and ultimately approved a nearly record high budget for USEPA of $9.1 Billion.  Congress’ continued rejection of the spending cuts proposed by the Trump Administration is acknowledged in the Administration’s most recent 2021 budget proposal, which derides Congress for continuing “to reject any efforts to restrain spending” and “greatly contribut[ing] to the continued ballooning of Federal debt and deficits, putting the Nation’s fiscal future at risk.” The proposal promises that the Trump Administration will use “all available tools and levers” to ensure that the spending reductions outlined in the budget are finally implemented.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, OSHA, RCRA, Sustainability, TSCA, Water

PEOPLE: Matthew G. Lawson

November 18, 2019 DoD Quietly Releases PFAS Screening Levels

Someone fills a glass with tap water

Webres_Steven_Siros_3130By Steven M. Siros

On October 15th, the Department of Defense (DoD) issued an internal guidance document regarding CERCLA cleanup actions involving per- and polyfluoroalkyl substances (PFAS). The DoD guidance sets screening levels for three PFAS compounds that some have criticized as being inconsistent with draft screening levels that are in the process of being finalized by U.S. EPA.

DoD’s October 15th guidance document adopts U.S. EPA’s proposed screening level (in groundwater) of 40 parts per trillion (ppt) for sites containing both perfluorooctane sulfonate (PFOS) and perfluorooctanioic acid (PFOA). However, the DoD guidance adopts a higher screening level for sites containing only one of the three targeted PFAS compounds. For sites containing only PFOA or PFOS, the DoD screening level jumps to 400 ppt. The guidance also sets a screening level for perfluorobutanesulfonic acid (PFBS) (a shorter chain PFAS compound) at 40,000 ppt.

The DoD guidance is silent with respect to other PFAS compounds. The guidance also doesn’t specify a particular clean-up level if the above-referenced screening levels are exceeded.  Instead, the guidance notes that a site-specific risk assessment will be conducted to determine if remedial measures are necessary. 

Notwithstanding the DoD guidance document, there is no indication that U.S. EPA will not continue to rely on its 40 ppt level screening (both for single- and combined-PFAS compound sites) and 70 ppt preliminary cleanup goal proposed in its draft interim guidelines for remediating PFAS-impacted groundwater at DoD sites.

CATEGORIES: Cercla, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

September 6, 2019 Recent DOJ Directive Marks Continuing Effort to Curb Availability of Supplemental Environmental Projects in Civil Environmental Settlements

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  By Matthew G. Lawson

On August 21, 2019, the Department of Justice issue a new memorandum reducing state and local governments’ ability to enter into settlement agreements that require the completion of supplemental environmental projects (SEPs) as compensation for alleged environmental violations. While impactful in its own right, the DOJ memo can be viewed as a continuation of an over two-year long effort by the DOJ to reduce the general availability of SEPs in the settlement of civil environmental cases. 

As defined by the EPA, “SEPs are projects or activities that go beyond what could legally be required in order for the defendant to return to compliance, and secure environmental and/or public health benefits in addition to those achieved by compliance with applicable laws.” Private parties or municipalities may offer to complete SEPs as part of a settlement with EPA or other environmental regulators. By doing so, the alleged violator effectively replaces a part or all of the penalty owed for an environmental violation with the commitment to develop an environmentally beneficial project.

Despite the widespread and longstanding use of SEPs in settlement agreements, recent actions by the DOJ demonstrate a clear effort by the Department to reduce the use of SEPs in the settlement of alleged environmental violations.

The trend started with a June 8, 2017 policy directive issued by then Attorney General Jeff Sessions which broadly prohibited settlement agreements from “directing or providing” payment to any third-parties that are neither victims nor parties to the lawsuits. The directive had the immediate effect of prohibiting SEPs that require violators to fund environmental project performed by third parties.

The 2017 directive was then followed by a second memorandum on November 11, 2018, which barred the use of consent decrees to achieve “general policy goals or to extract greater or different relief from the defendant than could be obtained through agency enforcement authority or by litigating the matter to judgment.”

Finally, in its most recent move, the August 21st DOJ memorandum issued from the Department’s Environmental and Natural Resource Division details the DOJ’s determination that environmental SEPs are prohibited under the November 2018 directive. Specifically, the memo provides that “[t]he use of SEPs in consent decrees with state and local governments contravenes the prohibition on using consent decrees to ‘extract greater or different relief from [a state or local government] than could be obtained through agency enforcement authority or by litigating the matter to judgment.’” While the memorandum notes several conditions where SEPs may still be permitted, it cautions that exemptions to the general prohibition “are meant to be rare.”  

With the DOJ’s most recent actions, it appears that environmental regulators will no longer be permitted to agree to SEPs in most, if not all, settlement agreements. However, open questions remains whether regulators will be able to fashion future SEPs that comply with the recent DOJ directives.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Sustainability, Water

PEOPLE: Matthew G. Lawson

July 29, 2019 Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

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Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

  1. I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?

I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.

My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.

  1. What was your professional and academic background leading to your involvement in health risk assessment?

My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.

  1. What was it like to be part of the start of a new federal agency?

Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.

At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.

  1. What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?

I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.

I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.

  1. After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?

After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.

  1. What are the emerging policy issues in the area of human health risk assessment?

Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.

In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.

Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.

Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.

  1. What do you enjoy most about your work in the field of human health risk assessment?

The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.

  1. What do you find to be the most challenging aspect of your work?

It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.

  1. What or who helped you succeed as a leader in the area of human health risk assessment?

I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.

  1. What advice would you give a young person today who is considering starting out in your field?

Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.

Dr. Anderson was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Air, Cercla, Consumer Law and Environment, RCRA, Toxic Tort, Water

PEOPLE: Gabrielle Sigel

May 15, 2019 EPA Adds Seven Sites to the Superfund National Priorities List

Torrence_jpgBy Allison A. Torrence

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On May 13, 2019, U.S. EPA announced that it is adding seven sites to the Superfund National Priorities List (NPL), which includes the most serious contaminated sites in the country. EPA uses the NPL as a basis for prioritizing contaminated site cleanup funding and enforcement activities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA a/k/a Superfund) requires EPA to create a list of national priorities among sites with known releases or threatened releases of hazardous substances throughout the United States, and update that list every year. EPA has established a Hazard Ranking System (HRS) screening tool, which EPA uses, along with public comments, to determine which contaminated sites should be on the NPL.

Under the Trump Administration, EPA has expressed a renewed focus on contaminated site cleanup, declaring the Superfund program to be a “cornerstone” of EPA’s core mission to protect human health and the environment. EPA Administrator Andrew Wheeler reiterated this focus when announcing the seven new NPL sites:

By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse. Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL, the largest number of deletions in one year since Fiscal Year 2005.

Currently, there are 1,344 NPL sites across the United States. The following sites are being added to the NPL per EPA’s announcement:

  • Magna Metals in Cortlandt Manor, New York
  • PROTECO in Peñuelas, Puerto Rico
  • Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia
  • Cliff Drive Groundwater Contamination in Logansport, Indiana
  • McLouth Steel Corp in Trenton, Michigan
  • Sporlan Valve Plant #1 in Washington, Missouri
  • Copper Bluff Mine in Hoopa, California

Information about the NPL sites, including a map of all sites, is available on EPA’s website.

CATEGORIES: Cercla, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

May 15, 2019 EPA Adds Seven Sites to the Superfund National Priorities List

Torrence_jpgBy Allison A. Torrence

Map

On May 13, 2019, U.S. EPA announced that it is adding seven sites to the Superfund National Priorities List (NPL), which includes the most serious contaminated sites in the country. EPA uses the NPL as a basis for prioritizing contaminated site cleanup funding and enforcement activities.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA a/k/a Superfund) requires EPA to create a list of national priorities among sites with known releases or threatened releases of hazardous substances throughout the United States, and update that list every year. EPA has established a Hazard Ranking System (HRS) screening tool, which EPA uses, along with public comments, to determine which contaminated sites should be on the NPL.

Under the Trump Administration, EPA has expressed a renewed focus on contaminated site cleanup, declaring the Superfund program to be a “cornerstone” of EPA’s core mission to protect human health and the environment. EPA Administrator Andrew Wheeler reiterated this focus when announcing the seven new NPL sites:

By adding these sites to the National Priorities List, we are taking action to clean up some of the nation’s most contaminated sites, protect the health of the local communities, and return the sites to safe and productive reuse. Our commitment to these communities is that sites on the National Priorities List will be a true national priority. We’ve elevated the Superfund program to a top priority, and in Fiscal Year 2018, EPA deleted all or part of 22 sites from the NPL, the largest number of deletions in one year since Fiscal Year 2005.

Currently, there are 1,344 NPL sites across the United States. The following sites are being added to the NPL per EPA’s announcement:

  • Magna Metals in Cortlandt Manor, New York
  • PROTECO in Peñuelas, Puerto Rico
  • Shaffer Equipment/Arbuckle Creek Area in Minden, West Virginia
  • Cliff Drive Groundwater Contamination in Logansport, Indiana
  • McLouth Steel Corp in Trenton, Michigan
  • Sporlan Valve Plant #1 in Washington, Missouri
  • Copper Bluff Mine in Hoopa, California

Information about the NPL sites, including a map of all sites, is available on EPA’s website.

CATEGORIES: Cercla, Hazmat, Real Estate and Environment, Sustainability

PEOPLE: Allison A. Torrence

April 2, 2019 Trends in Climate Change Litigation: Part 1

Matthew G. Lawson

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

April 2, 2019 Trends in Climate Change Litigation: Part 1

Headshot

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

Linkedin_Steven_Siros_3130

 

By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

CATEGORIES: Cercla, Climate Change, OSHA, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

March 12, 2019 EPA Can’t Dodge Gold King Mine Liability

Linkedin_Steven_Siros_3130

 

By Steven M. Siros

Gold King Mine Spill

U.S. EPA continues to be on the hook for damages associated with the Gold King Mine located in San Juan County, Colorado. Several years ago, a contractor working on behalf of U.S. EPA to address environmental impacts associated with a closed gold mine, destroyed a plug holding water trapped inside of the mine, causing the release of approximately three million gallons of mine waste water into Cement Creek, which was a tributary of the Animas River. Although U.S. EPA took responsibility for the incident, it has refused to pay damages incurred as a result of he release, leading to lawsuits being filed by a variety of plaintiffs, including the states of Utah and New Mexico, the Navajo Nation, and affected individuals. Plaintiffs asserted a variety of claims, including claims under CERCLA, RCRA, CWA, and the Federal Tort Claims Act (FCTA).  U.S. EPA filed a motion to dismiss, arguing among other things, that it was entitled to sovereign immunity for damages resulting from an ongoing cleanup effort. 

On February 28, 2019, the federal district court in New Mexico rejected U.S. EPA’s claim that it was protected from CERCLA liability on sovereign immunity grounds, noting that at least three circuit courts have found that U.S. EPA can face liability under CERCLA where U. S. EPA’s actions in remediating a site are alleged to have caused releases of hazardous wastes. The court also found that plaintiffs’ allegations (which included Utah and New Mexico, as well as the Navajo Nation and individuals), if proven, would demonstrate U.S. EPA’s liability as an “arranger,” “operator,” and “transporter” of hazardous substances. Specifically, Plaintiffs stated claims for arranger liability because they "allege that EPA took intentional steps to dispose of a hazardous substance.” With respect to operator liability, the court noted that Plaintiffs “allege that EPA managed, directed, or conducted operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Finally, regarding transporter liability, Plaintiffs “allege that EPA took steps to drain the mine and treat the water at the site.”

With respect to the RCRA, CWA, and FCTA claims, the court concluded that there were disputed issues of fact that precluded the court from being able to grant dismissal of those claims. We will continue to provide updates on this proceeding.

CATEGORIES: Cercla, Climate Change, OSHA, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

October 17, 2018 Trump Administration Releases Fall 2018 Regulatory Agenda

Torrence_jpgBy 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
  • Transparency
  • 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.

CATEGORIES: Air, Cercla, Climate Change, FIFRA, Greenhouse Gas, Hazmat, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

October 8, 2018 EPA To Begin Superfund Adaptive Management Pilot Program

Torrence_jpgBy Allison A. Torrence

AMUnder 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
  • Stakeholder participation

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.

CATEGORIES: Cercla, Real Estate and Environment

PEOPLE: Allison A. Torrence

September 17, 2018 EPA Finalizes Unprecedented NPL Listing

By Matthew G. Lawson

Rockwell GrenadaOn 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.

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Matthew G. Lawson

March 5, 2018 EPA “Year in Review”

Torrence_jpgBy Allison A. Torrence

Year in ReviewOn Monday, March 5, 2018, EPA issued a report titled EPA Year in Review 2017-2018. The report contains an introductory letter from Administrator Pruitt, who states that he has been “hard at work enacting President Donald Trump’s agenda during [his] first year as EPA Administrator.” The report highlights accomplishments at EPA over the past year, with a focus on the roll back of regulations from the Obama Administration, such as the Clean Power Plan and the Waters of the United States Rule. Administrator Pruitt stated that “[i]n year one, EPA finalized 22 deregulatory actions, saving Americans more than $1 billion in regulatory costs.”

According to the report, Administrator Scott Pruitt set forth a “back-to-basics agenda” with three objectives:

  1. Refocusing the Agency back to its core mission
  2. Restoring power to the states through cooperative federalism
  3. Adhering to the rule of law and improving Agency processes

The report also identifies EPA’s “core mission” as “clean air, land, and water,” and argues that in recent years, “central responsibilities of the Agency took a backseat to ideological crusades, allowing some environmental threats – like cleaning up toxic land – to go unaddressed.” In light of these alleged lapses, EPA states that:

Administrator Pruitt returned the Agency to its core mission and prioritized issues at the heart of EPA’s purpose: ensuring access to clean air and water, cleaning up contaminated lands and returning them to communities for reuse, improving water infrastructure, and ensuring chemicals entering the marketplace are reviewed for safety. In just one year, EPA made immense progress on these fronts, and the American people have seen real, tangible results.

Topics covered in the report include:

  • Air: Improving Air Quality
  • Water: Provide for Clean and Safe Water
  • Land: Revitalize Land for Reuse
  • Chemicals: Ensure Safety of Chemicals
  • Enforcement
  • Cooperative Federalism and Public Participation
  • Rule of Law

The report concludes with several pages of quotes from elected officials, state environmental agencies, and industry representatives, offering praise for the work done by EPA and Administrator Pruitt:

Leslie Rutledge, Attorney General, Ark.: “Administrator Pruitt’s decision last month to completely re-evaluate the WOTUS rule, minimizing the regulatory burden on countless landowners, demonstrates his commitment to building stronger relationships with state partners.” (07/20/17)

The Year in Review report was tweeted out by Administrator Pruitt and can be found on EPA’s website.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, RCRA, Real Estate and Environment, Sustainability, TSCA, Water

PEOPLE: Allison A. Torrence